The Executive Regulation, Due Process and Judicial Remedies of the Development in Mining Industry

• Main Authors: LAI,KUAN-HAN, 賴冠翰
• Other Authors: Lee, Chien-Liang
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/8adx4f

碩士 === 東吳大學 === 法律學系 === 107 === Human economic activities are closely related to mineral resources. Therefore, in the 19th year of the Republic of China, Taiwan formulated a Mining Act to regulate the development of various mineral resources. Since the 1980s, the public's awareness of environmental protection has risen, and various norms in China have also begun to practice the law. However, although Taiwan's Mining Act has undergone several revisions, the content system is still not comprehensive. As a result, many environmental impacts have been caused by mining development activities in Taiwan, and disputes have continued. This paper believes that there are two main reasons for the problems in mining development act: First, misidentify the nature of the Mining right. Based on Article 143 of the Constitution, the regulations of the Mineral shall belong to the State, and the nature of the Mineral right should be the concessionaire, not the licensing. Therefore, the state has a high discretionary authority on whether to give the applicant mining rights. Second, misunderstand the meaning of the development permit of the Environmental Impact Assessment Act. First of all, the significance of the EIA development permit is “no environmental assessment, no permit, no development”, so mining development activities should not be carried out before the development permit is obtained; in addition, the environmental impact assessment method is not the same as the development permit of the Mining act. The Mining right is a continuation of the old right, not a new one. Therefore, based on the above two points, this paper is divided into four chapters from the aspects of The Executive Regulation, Due Process and Judicial Remedies of the Development in Mining Industry. Beginning with Chapter 2, analyze the legal framework of mining development executive regulation. First introduce the Mining Act system including the evolution of the law, and how to obtain the mining rights and exhibition limits, and thereby guide the various issues under the current mining executive regulation in Taiwan. The third chapter discusses the due process of mining development executive regulation and focuses on popular participation. Analysis of Taiwan's Mining Act and mining law related regulations, with the rules of the public participation system, and can be summarized from the deficiencies and areas to be improved. And from the Aarhus Convention, as a comparative observation. The fourth chapter discusses the judicial remedies of mining executive regulation and the due process. And examine the lack of environmental laws and leaks in Taiwan. And introduce the foreign environmental public interest litigation system as a reference for Taiwan's future revision. The fifth chapter is the conclusion. Through the first three chapters on the overall analysis of the Mining Act, this chapter will first put forward research findings to explore the current Mining Act in Taiwan for executive regulation, due process and judicial remedies have their shortcomings, and propose relevant amendments for these three parts. Finally, an analysis of the relevant amendment norms or drafts currently in practice. And hope that the relevant recommendations and conclusions of this paper can contribute to the current disputes related to mining development.