矿业权不能纳入物权法的法理论证——兼议矿业权的虚无性

中国政法大学承担的修改《矿产资源法》的研究课题，强调矿业权应当纳入《物权法》，但课题内容中关于矿业权的特点、结构及法律关系的论述，又恰好是物权法所排斥的。以法理分析法论证了这种冲突缘自“矿业权”的虚无性，虚拟的权利多面体导致片面性认识。分解“矿业权”，将其重构为独立的矿产权和矿产开发权。矿产权可分别纳入物权法，矿产开发权属于公法性的《矿业法》调整。矿业权不但不能纳入物权法，而且其存在和创设属“违法”。

The Argumentation of Legal Principle on the Right of Mining Industry Unfit into the Law of Real Right——With Discussions on Nihility of the Right of Mining Industry

The research project on modifying the "The Law of Mineral Resources" that China University of Political Science and Law undertakes emphasizes that the right of mining industry should be brought into "The Real Right".However,the accounting about the characteristics,structure and law relationship of the right of mining industry in the research project are excluded from the Law of Real Right.In this paper,the demonstration from the analysis of legal principle mainly focuses on the conflict resulted from the nihility of the Right of Mining Industry,and the polyhedron of virtual power resulting in the one-sided view.Then it is pointed that "The Right of Mining Industry" can be resolved into two independent rights: the mineral right and the right of mineral exploitation.Meanwhile,the mineral right can be placed into the law of real right while the right of mineral exploitation belongs to the adjustment of "The Law of Mining Industry" in public law.Therefore,the right of mining industry can not be brought into the Law of Real Right,and its existence and creation are against the law.