Interim Provisions of Shanxi Province on Public Transfer of Mining Rights
2018-08-26 1419
- Area of Law: Geology & Mining
- Level of Authority: Local Government Rules
- Date issued:07-04-2003
- Effective Date:08-01-2003
- Issuing Authority: Shanxi Province
- Status: Effective
Order of the People's
Government of Shanxi Province
(No. 164)
The “Interim Provisions of Shanxi Province on Public Transfer of Mining
Rights”, which were adopted at the 7th executive meeting of the Provincial
People's Government on July 1, 2003, are hereby promulgated, and shall come
into force on August 1, 2003.
Liu Zhenhua, Governor
July 4, 2003
Interim Provisions of Shanxi Province on Public Transfer of Mining Rights
Chapter I General Provisions
Article 1 The present Provisions are formulated in accordance with the “Law of the People's Republic of China on Mineral
Resources”, the “Measures on the
Administration of Registration of Regions for Prospecting Mineral Resources”,
the “Measures on the Administration of Registration of
Mining of Mineral Resources” and other laws and regulations with a
view to regulating the public transfer of mining rights, improving the system
of paid transfer of mining rights, and optimizing the allocation of mineral
resources.
Article 2 The public transfer of mining rights within the jurisdiction of this
Province shall be governed by the present Provisions.
Article 3 Mining rights mentioned in the present Provisions include mineral
prospecting right and mining right.
Article 4 The public transfer of mining rights shall be in the ways of bid
invitation, auction or listing.
Article 5 The public transfer of mining rights shall comply with the principles
of publicity, fairness, honesty and credibility.
The public transfer of mining rights shall conform to the industrial policies
and the mineral resource planning of the State, and be in combination with the
situation of market supply and demands.
Article 6 The administrative department of land and resources under the
people's government at the county level or above (hereinafter referred to as
the competent department) shall, within the scope of power for approving and
issuing certificates as prescribed in laws and regulations, be responsible for
the public transfer of mining rights.
An inferior competent department shall, if intending to publicly transfer a
mining right, report to the superior competent department for approval or
record, and be supervised by the superior competent department.
The relevant competent department under the people's government at the county
level or above shall perform the duties imposed by laws and regulations.
The public transfer of the rights in the coal mine or metal ore industry may
not be arranged for implementation before approved by the Provincial People's
Government.
Article 7 A newly set mining right shall be in the way of public transfer,
except for the surveying projects funded by the State or using mineral resource
compensation fee at the provincial level.
To set mining rights at the following orefields, the way of public transfer
shall be adopted:
(1) an orefield surveyed and found out with funds of the State;
(2) an orefield which has lost mining rights;
(3) an orefield with mining rights not having been set.
Article 8 Before a mining right is publicly transferred, the competent
department shall entrust an evaluation institution qualified to evaluate mining
rights to evaluate the said right, except for the small river sand and the clay
used for making bricks and tiles.
The result from evaluation shall, after being confirmed by the competent
department, be considered as the basis of the minimum bid or minimum price of
the mining right in public transfer.
Article 9 The bid winner and the vendee who acquires a right in the coal mine
industry in the way of public transfer may choose on its initiative to apply
for the prospecting permit or mining permit.
The coal mine prospecting right and the coal mining right shall be evaluated in
the same way.
Chapter II Bid Invitation
Article 10 Bid invitation concerning a mining right as mentioned in the present
Provisions means that the competent department invites, by a notice for bid
invitation or by a bid invitation letter, uncertain or certain legal persons,
natural persons or other organizations qualified as the applicants for mining
rights to participate in a bid, and determines the bid winner of the mining
right according to the result of the bid.
Article 11 The competent department for the bid invitation of mining rights
shall announce a notice for bid invitation or send out a bid invitation letter.
The notice for bid invitation or the bid invitation letter shall include the
following contents:
(1) name and address of the competent department;
(2) scope of the mining area with the mining right under planned transfer,
brief information on geological minerals and the scale of reserves, etc.;
(3) ways to obtain the bid invitation documents;
(4) qualification requirements for the bidders;
(5) amount of the guaranty bond for implementation of the contract and the time
of payment;
(6) time and place for applying for bidding and examination of qualification;
(7) expiry date of bidding and the bidding place;
(8) other particulars necessary to be stated.
The competent department shall determine the reasonable time needed by the
bidders to work out the bidding documents, provided that the period from the
day when the bid invitation documents are sent out up to the expiry date for
bidding shall be no less than 30 days.
Article 12 The competent department shall form a committee for examination of
the bidders' qualifications. When necessary, the qualification examination
committee may absorb experts from such relevant departments as the coal
administrative department to participate the examination.
Article 13 The bidders shall fill out the bidding documents, and shall, after
sealing the said documents, tender bids and pay the guaranty bond for bidding
within the prescribed time.
A bidding document shall be invalid if:
(1) it exceeds the expiry time for bidding;
(2) the main factors of the bidding documents are lacked, the annexes of the
bidding documents are incomplete, or the characters in the bidding documents
are unclear to be recognized;
(3) the bidder entrusts others to tender the bid but the entrustment documents
are incomplete or do not conform with the provisions;
(4) the bid is repeatedly tendered;
(5) the bidder tenders the bid by practicing frauds; or
(6) other circumstances of invalidity prescribed in laws, regulations and
rules.
Article 14 The bid shall be opened publicly at the time and place determined in
the bid invitation documents. The opening of the bid shall be presided by the
person sent by the competent department, and all the bidders shall be invited
to attend the opening.
The process of the opening of the bid shall be recorded and kept in file for
consultation.
When a bid is opened, the seal of the bidding documents shall be inspected by
the bidders or their representatives, or may be inspected and notarized by a
public notary institution entrusted by the competent department; after the
bidding documents are confirmed to have no error, the working members shall
unseal them publicly, read the names of the bidders, the bidding prices and
other main contents of the bidding documents.
Article 15 The responsibility to evaluate a bid shall remain with the bid
evaluation committee formed by the competent department. The bid evaluation
committee shall be composed of representatives from the competent department and
the relevant experts in the field of technology and economics, etc., with the
members to be no less than five persons in odd number, among whom the experts
in the field of technology and economics, etc. shall be no less than two thirds
of the total number of members.
The name list on the members of the bid evaluation committee must be kept
confidential before the result on the winning of the bid is announced.
The bid evaluation committee shall, according to the standards and ways
determined in the bid invitation documents for evaluating bids, evaluate and
examine as well as compare the bidding documents. The bid evaluation committee
shall, after evaluating the bid, render a written bid evaluation report to the
competent department, and recommend qualified candidates for winning the bid.
The competent department shall determine the bid winner on the basis of the
written bid evaluation report rendered and the candidates for winning the bid
recommended by the bid evaluation committee, or may authorize the bid
evaluation committee to directly determine the bid winner.
Article 16 After the bid winner has been determined, the competent department
shall conclude the letter on confirmation of the bargain and the contract on
bid invitation and transfer of the mining right with the bid winner, and make
registration in accordance with the law within the stipulated time limit.
Chapter III Auction
Article 17 Auction of a mining right as mentioned in the present Provisions
means that the competent department announces the auction notice for the
bidders to an auction who are qualified as the applicants for the mining right
to bid publicly at the designated time and place, and transfer the mining right
to the one who responds the highest price.
Article 18 The competent department for auction of mining rights shall announce
the auction notice 20 days prior to the auction day.
An auction notice shall include the following contents:
(1) name and address of the competent department;
(2) scope of the mining area with the mining right under planned transfer,
brief information on geological minerals and the scale of reserves, etc.;
(3) qualification requirements for the bidders to an auction;
(4) ways to obtain the auction documents;
(5) time, place and bidding method of the auction, with the minimum price, if
any, being specially declared;
(6) ways to determine the vendee;
(7) amount of the guaranty bond for implementation of the contract and the time
of payment thereof; and
(8) other particulars necessary to be announced.
Article 19 The competent department shall form a committee for examination of
the qualification of the bidders to an auction. When necessary, the
qualification examination committee may absorb experts from such relevant
departments as the coal administrative department to participate the
examination.
Article 20 If there is a minimum price for an auction, and the highest price
responded by the bidders to the auction does not reach the minimum price, the
responded price shall not become effective.
Article 21 After the bargain of an auction is made, the competent department
and the vendee shall conclude the letter on confirmation of the bargain and the
contract on auctioned transfer of mining rights in accordance with the relevant
provisions, and shall make registration within the stipulated time limit.
Chapter IV Listing
Article 22 Listing of a mining right as mentioned in the present Provisions
means that the competent department announces a listing notice, and accepts the
quotations of the bidders to the auction within the time limit and at the place
prescribed in the listing notice, and updates the listed price, as well as
determines the vendee of the mining right according to the bidding result at
expiry of the time limit for listing.
Article 23 For the listing of a mining right, the competent department shall
announce the listing notice 20 days before the first day of the listing.
The listing notice shall include the following elements
(1) name and address of the competent department;
(2) scope of the mining area with the mining right under planned transfer,
brief information on geological minerals and the scale of reserves, etc.;
(3) qualifications of the bidders to an auction;
(4) ways to obtain the listing documents;
(5) time and place of listing, initial price, rules on increasing the price,
range for increasing the price, etc., with the minimum price, if any, being
specially declared;
(6) ways to determine the vendee;
(7) amount of the guaranty bond for implementation of the contract and the time
of payment thereof; and
(8) other particulars necessary to be announced.
Article 24 The time of listing shall be no shorter than 10 working days. During
the period of listing, the bidders to an auction may quote prices for more than
one time.
Article 25 The bidder to an auction who quotes the highest price which is
higher than the minimum price, or the bidder to an auction who submits at
earliest the price quotation list among the same quoted prices shall be the
vendee, and the bargain shall be listed to have been made.
If, within time limit for listing, no one bids for the auction or the prices
quoted by the bidders to the auction are lower than the minimum price, it shall
be listed that the bargain is not made.
Article 26 After the bargain is listed to have been made, the competent
department and the vendee shall conclude the letter on confirmation of the
bargain and the contract on listed transfer of the mining right in accordance
with the relevant provisions, and shall make registration within the stipulated
time limit.
Chapter V Other Provisions
Article 27 The bid winner or the vendee shall, after concluding the contract on
transfer of the mining right with the competent department, apply to the
administrative organ for the registration of mining rights for obtaining the
prospecting permit or mining permit within the time limit stipulated in the
contract. If the bid winner or the vendee fails to apply to the administrative
organ for the registration of mining rights within the time limit for making
the registration, it shall be regarded as waving the right automatically.
The guaranty bond for bidding or for the bid to the auction, which is paid by
the bid winner or the vendee, may be used to offset the price of the mining
right. For the guaranty bond for bidding or for the bid to the auction, which
is paid by other bidders or bidders to an auction, the competent department
must return them within 5 working days after the end of the public transfer,
without calculating the interest.
Article 28 The bid winner or the vendee shall, before obtaining the prospecting
permit or mining permit, pay the price of the mining right in public transfer
in a lump sum; if the amount of the price of the mining right is large, it may
be paid by installments in accordance with the relevant provisions of the state
upon consent by the competent department, provided that the initial payment
shall be no less than 30%.
If the bid winner or the vendee fails to pay the price of the mining right as
stipulated, the competent department may recall the said right in accordance
with the law.
If the competent department fails to obtain the prospecting permit or mining
permit in accordance with the provisions, the bid winner or the vendee may
apply for administrative reconsideration or brings an administrative lawsuit in
accordance with the law.
Article 29 The total amount of the price of mining rights shall be fully turned
in to the treasury, with the specific measures of administration and use
complying with the relevant provisions of the State.
Chapter VI Legal Liabilities
Article 30 If the bid winner or the vendee commits any of the following acts in
violation of the present Provisions, the bid it has won shall be invalid, and
the paid guaranty bond for bidding or for the bid to the auction shall not be
refunded; if there is any loss, it shall bear the compensation liability in
accordance with the law. The relevant department may impose administrative
penalties upon the relevant liable persons in accordance with the law:
(1) Providing false documents to conceal the facts;
(2) Colluding with others in bad faith;
(3) Offering bribes to the competent department or the bid evaluation committee
or any of the members thereof; or
(4) Winning the bid by other illegal means.
Article 31 The bid winner or the vendee shall, after obtaining the prospecting
permit or mining permit, make the survey or start the construction in
accordance with the relevant provisions. If it violates the provisions by
failing to make the survey or start the construction on time, it shall be
punished in accordance with the law; if the case is serious, its prospecting
permit or mining permit shall be suspended in accordance with the law.
Article 32 If any member of the bid evaluation committee violates the present
Provisions by accepting a bidder's properties or other benefits, or discloses
the minimum bid or other relevant information to others, his qualification as a
member of the bid evaluation committee shall be canceled by the competent
department; if a crime is constituted, he shall be investigated for criminal
liabilities in accordance with the law.
Article 33 If any functionary of the competent department violates the present
Provisions by neglecting his duties, abusing his power or practicing frauds for
personal gain in the public transfer of mining rights, but a crime is not
constituted, he shall be imposed upon administrative sanctions in accordance
with the law; if a crime is constituted, he shall be investigated for criminal
liabilities in accordance with the law.
Chapter VII Supplementary Provisions
Article 34 With respect to the coal mine prospecting right acquired by means of
administrative approval prior to the present Provisions' entry into force, if
the applicant applies within the validity period for the mining right after
finding out the coal mine which may be mined, it may acquire the mining right
in priority, instead of acquiring it be means of public transfer, provided that
it must pay a certain amount of price difference between the actual acquisition
price and the price in public transfer of the mining right.
Article 35 If a holder of a mining right transfers the right, it shall comply
with the “Measures on the Administration of
Transfer of Mineral Prospecting Rights and mining rights”
promulgated by the State Council.
Article 36 The administrative department of land and resources under the
Provincial People's Government may formulate detailed rules for the
implementation of the present Provisions.
Article 37 The present Provisions shall come into force on August 1, 2003.