论矿业法律责任的重构

现行矿业制度几乎没有安全与健康、环境污染、矿业相邻关系以及公权力行政等方面的重要法律责任，因而在矿山企业违法结果发生后则以人治取代法治而治不胜治，这主要是以“矿”为主的财产性《矿产资源法》法律渊源的局限。应制定以“业”为主的管制性《矿业法》，以矿山企业应承担的社会责任为依据设置第一性义务，不履行第一性义务则按第二性义务承担不利后果。第二性义务是以社会性矿业法律责任为主，与经济性、政治性法律责任等构成矿业法律责任体系。社会性矿业法律责任的民事侵权适用严格责任原则、无过错原则、因果关系推定以及并不以违法为条件等。

Discussing of Reconstruction of Mining Legal Liability

The existing mining legal liability lack of institutional arrangement of safety and health, environmental pollution, mining neighboring relations and improper administration. Human management after illegal activity of mining enterprises happened is not better than doing nothing because of the restriction of "mining resource law" which based on mine. A "mining law" which based on property should be designed, and set the first obligation based on the liability of mining property, then set the second obligation based on those enterprises which do not perform duty. The second obligation is based on the social liability, and concludes with tort liability, administrative liability, and criminal liability. Mining social and legal responsibility is the same with principle of strict liability, no fault principle, causation presumption, and not setting illegal as condition.