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"China Economic Weekly" reporter Xu Hao | Beijing report
Editor: Chen Weishan
(This article was published in the 2018 issue of "China Economic Weekly" Issue 6)
Located in Yulin City in northern Shaanxi, it is called "China's Kuwait" because of its rich underground mineral resources. In 1982, Xinhua News Agency reported that "there is a sea of coal in northern Shaanxi, which is of high quality and easy to mine." This news made the outside world aware of its rich coal reserves.
How many coal reserves are there in Yulin? Data shows that its predicted coal reserves are 272 billion tons and its proven reserves are 149 billion tons. During the "Golden Decade of Coal" and the period of rising crude oil prices, the energy industry once accounted for half of Shaanxi Province's industry, reaching a peak of 60%.
In 2003, Yulin Kaiqilai Energy Investment Co., Ltd. (hereinafter referred to as "Kaiqilai") signed a "Cooperative Exploration Contract" with the Xi'an Geological and Mineral Exploration and Development Institute of the Shaanxi Provincial Geological and Mineral Exploration and Development Bureau (hereinafter referred to as the "Western Exploration Institute") 》, jointly conducted a detailed and precise survey of coal resources in the Polo-Hongshiqiao exploration area.
However, this coal mine, once valued at hundreds of billions, did not bring wealth to Keqilai's legal representative Zhao Faqi. The two parties had disputes over the cooperative exploration contract, and the case was litigated for more than ten years. On December 21, 2017, the Supreme People's Court made a final judgment, ruling that the contract signed between Kechilai and the Western Survey Institute was legal and valid and would continue to be performed.
After nearly 12 years of defending rights, the results finally came, but Zhao Faqi told a reporter from China Economic Weekly, "I am not too happy, and we have to continue to fight."
The twists and turns of "cooperative investigation"
Information provided by Zhao Faqi shows that in 2003, On August 25, Keqilai signed a "Cooperative Exploration Contract" with the Western Exploration Institute.
A copy of the contract seen by a reporter from China Economic Weekly showed that Keqilai and the Western Exploration Institute agreed to invest in the Boluo-Hongshiqiao exploration area (Polo Mine Field) in Hengshan County, Shaanxi Province at a ratio of 8:2. The company conducted a cooperative detailed investigation and exploration of coal resources. The exploration rights of the mining area were evaluated by a statutory evaluation agency and reported to the Department of Land and Resources for filing. The two parties negotiated and determined that its value was 15 million yuan. After the agreement comes into effect, the benefits generated from the exploration area, regardless of appreciation, joint development, or mineral rights transfer, will be shared at a ratio of 8:2.
The Boluo Mine Field, with a permitted exploration area of 279.24 square kilometers, is located in Yuyang District and Hengshan County of Yulin City. Later, preliminary exploration reserves were nearly 2 billion tons. During the "Golden Decade of Coal", as coal mine prices soared, the market valuation once reached 380 billion yuan.
Before signing the agreement, Zhao Faqi didn’t know whether he could dig out “black gold.” In his words, “exploration investment is like gambling,” because he didn’t know whether there were mines underground and what their quality was.
In March 2004, the Western Exploration Institute submitted the summary of the contract and exploration rights evaluation report to the Shaanxi Provincial Department of Land and Resources for filing. The Department of Land and Resources believes that in accordance with relevant regulations, both parties can submit the contract to the Department of Land and Resources for record. However, according to the minutes of the 21st meeting held by the Shaanxi Provincial Government on October 20, 2003 (hereinafter referred to as the "21st Meeting Minutes"), relevant documents should also be submitted. Department approval document.
Zhao Faqi said that he then reported the situation to a then provincial government leader, who instructed the Provincial Department of Land and Resources to handle it.
In August 2004, the Shaanxi Provincial Department of Land and Resources stated: "Our department believes that the cooperative exploration between Keqilai Company and the Xi'an Geological and Mineral Development Institute of the Shaanxi Provincial Geological and Mineral Exploration and Development Bureau complies with the requirements of national laws and regulations. The company has promised to be willing to bear risks, We are also willing to conduct cooperative exploration in accordance with the relevant regulations of the Shaanxi Provincial Government and can approve its cooperative exploration." Subsequently, Keqilai transferred 12 million yuan to the Western Exploration Institute to pay for the preliminary exploration rights.
However, in March 2005, the Western Exploration Institute returned Keqilai’s exploration rights fee of 12 million yuan and wrote a letter saying: “In accordance with the relevant provisions of the Mineral Resources Law of the People’s Republic of China, our institute has signed a cooperative exploration agreement with your company. The project... is inconsistent with the policies related to the minutes of the 21st meeting of the Shaanxi Provincial People's Government on October 22, 2003, and cannot be implemented as agreed in the contract, so the payment from your company cannot be collected."
After coordination between the two parties, on May 26, 2005, Keqilai paid 9 million yuan for the preliminary work of the survey to the Western Survey Institute, and the Western Survey Institute issued a receipt.
The Shaanxi Provincial Department of Land and Resources also paid 9 million yuan to the Western Survey Institute on November 8, 2005. The Shaanxi Provincial Government Office issued the "Report on the Coordination and Resolution of Cooperative Exploration Disputes over Coal Resources in the Boluo-Hongshiqiao Area, Hengshan County, Yulin City" ("Document No. 65"). The report stated: "After review, our office believes that , both parties promise to be willing to take risks and are willing to conduct cooperative exploration in accordance with the relevant regulations of the Shaanxi Provincial Government. If they meet the requirements of national laws and regulations, they can agree to cooperate in exploration. ”
But “Document No. 65” did not allow Keqilai and the Western Survey Institute to continue to smoothly perform the contract.
From winning to losing the case
After the two parties “reconciled”, on December 8, 2005, Keqilai sent a letter The Western Survey Institute hopes that the Western Survey Institute will immediately fulfill its contractual obligations, provide a detailed design and budget as soon as possible, and clarify the amount of money that Keqilai Company should pay. However, the Western Survey Institute responded, “Our cooperation with the Polo Mine Field is only limited. Relying on our own strength, it is no longer possible to start. "
Another operating route emerged behind this. Zhao Faqi believed that "one woman married twice" in the Western Survey Institute.
On December 14, 2005, the Shaanxi Provincial Department of Land and Resources sent a letter to the Shaanxi Provincial Bureau of Geology and Mineral Resources stating that after receiving the request from the then Shaanxi Provincial The approval document from the government leaders requires our department to request China National Chemical Engineering Group (hereinafter referred to as ' Sinochem Engineering') and Hong Kong Yiye Investment (Group) Co., Ltd. (hereinafter referred to as 'Hong Kong Yiye') to participate in the Yuheng project in northern Shaanxi Provide opinions on the report on the well field exploration work supporting the project. "
According to media reports, in November 2004, Sinochem Engineering, Hong Kong Yiye and the Yulin Municipal Government signed a cooperation agreement for the Northern Shaanxi Energy and Chemical Base Yuheng 2.4 million tons of methanol MTO project, involving an investment of 15 billion yuan. On October 10, 2005, the Shaanxi Provincial Development and Reform Commission issued an approval document stating that "the supporting well field of this project is the Boluo well field, with an area of 339.2 square kilometers, geological reserves of 1.568 billion tons, and a recoverable volume of 1.098 billion tons."
January 2006. On the 13th, the Shaanxi Provincial Department of Land and Resources submitted to the Shaanxi Provincial Government the "Request for Instructions on the Coordination Opinions of China National Chemical Engineering Group Co., Ltd. Hong Kong Yiye Investment (Group) Co., Ltd.'s participation in the coal resource exploration work in the Polo Mine Field" stating that according to the leadership of the provincial government According to the instructions, the Western Exploration Institute should actively coordinate with Sinochem Engineering and Hong Kong Yiye to sign a cooperative exploration agreement for the "Polo Well Field" exploration (precision survey). According to the investment by Sinochem Engineering and Hong Kong Yiye, the Western Exploration Institute is responsible for the exploration work and exploration. According to the principle that the results belong to the investors, after the "Methanol MTO Project" is approved by the competent authorities, the Western Exploration Institute will transfer the exploration rights of the mine field to the project development owner in accordance with the law.
On April 12, 2006, the Western Exploration Institute and Hong Kong Benefits. The industry signed a cooperative exploration contract for the "Bolo Mine Field". The "Polo-Hongshiqiao Area Coal Mine Survey" exploration right held by the Western Exploration Institute covers an area of approximately 340 square kilometers within the scope of the "Bolo Mine Field". It is 258 square kilometers, and most of the two areas overlap.
In May 2006, Keqilai sued the Western Survey Institute to the Shaanxi Provincial Higher People's Court . On October 19, 2006, the Shaanxi Provincial High Court made a first-instance judgment. Keqilai won the case. The Shaanxi Provincial High Court ruled that the cooperative exploration contract between Keqilai and the Western Survey Institute on August 25, 2003 was valid and both parties would continue to perform it; The company paid liquidated damages of RMB 27.6 million; within one month of the judgment taking effect, the exploration rights were transferred to the name of Kaiqilai Company.
The Western Exploration Institute was dissatisfied with the Shaanxi Provincial High Court's decision and appealed to the Supreme People's Court in November 2006. .
Zhao Faqi said that at the end of April 2008, the then Vice President of the Supreme Court, Xi Xiaoming, took the initiative to invite Shaanxi Provincial Government officials to the Supreme Court to "discuss the situation." In May 2008, the Shaanxi Provincial Government sent a letter to the Supreme Court to report the province's case.
The letter "Report on the Exploration Rights Dispute between the Western Exploration Institute and Keqilai Company" shows that the opinions and requests submitted by the Shaanxi Provincial Government to the Supreme People's Court include "The Western Exploration Institute and Keqilai Company" The cooperative exploration contract has not been completed and recorded, and has not been implemented, so it should be an invalid contract." "The first-instance judgment of the Provincial High Court did not correctly understand the basis of the cited documents," etc.At the same time, it was also pointed out that "if the judgment of the Provincial Higher People's Court is upheld, it will have a series of serious consequences" and "have a greater negative impact on the overall stability and development of Shaanxi."
This letter caused an uproar after it was exposed by the media at the time. Hou Xin, a professor at Nankai University School of Law and other digital legal experts jointly sent a "Recommendation on Calling on the Supreme People's Court to Resist Illegal Letters Interfering with Judicial Affairs" to the Supreme Court.
It was not until November 2009 that the Supreme People's Court made a second-instance ruling, holding that the facts found in the original judgment were unclear and remanded the case for retrial. In March 2011, the Shaanxi Provincial High Court reheard and ruled that the contract between the Western Survey Institute and Keqilai was invalid. Keqilai Company refused to accept the retrial judgment and appealed to the Supreme Court. After the case was heard for the first time on June 25, 2013, it was heard again on January 12, 2017, but the court did not pronounce the verdict in court.
The key "minutes of the 21st meeting"
In this dispute, the "minutes of the 21st meeting" were mentioned many times. What exactly does it refer to?
On October 20, 2003, the Shaanxi Provincial Government held the 21st executive meeting of 2003. The decisions of the meeting include: coal resources in northern Shaanxi that have not yet registered exploration rights will be directly controlled by the provincial government through registration arrangements; Units with exploration rights are all deemed to be conducting exploration on behalf of the government. The owner of the exploration rights has no right to dispose of the exploration rights. Whether, to whom and how to transfer the exploration rights will be decided by the provincial government based on the overall plan for base construction and the implementation of the transformation project. decision making.
The so-called "base" refers to the northern Shaanxi energy and chemical industry base that was officially approved by the former State Planning Commission to start construction in March 2003. This is the only national energy and chemical industry base in the country, covering the two cities of Yulin and Yan'an with an area of 80,000 square kilometers. In the same month, the first symposium on the construction of energy and chemical bases in northern Shaanxi called for the transformation of base construction from "disposable energy product development" to "deep processing and on-site conversion of resources" as soon as possible.
"Finance" once reported that "to support this big game, we must ensure that there are enough transformation projects stationed in the base." To this end, the Shaanxi Provincial Government provides supporting coal mines as a preferential policy. The prerequisite for being able to provide supporting coal mines for investors is that the provincial government must be able to uniformly allocate coal mines within the base, and it is inevitable to relinquish the right to dispose of coal mine exploration rights.
The "Mineral Resources Law" stipulates that "the state implements a system of paid exploration rights and mining rights" and "mining enterprises that have obtained mining rights... may transfer mining rights to others for mining with approval in accordance with the law." Before the "Minutes of the 21st Meeting", Shaanxi, like other provinces across the country, had the right to give priority to mining rights for mineral resources found in the exploration area.
A focus of both parties in the dispute is whether the signing time of the cooperative exploration contract between Keqilai and the Western Survey Institute was before or after the release of the "21st Meeting Minutes". In many court evidences, the Western Survey Institute stated that the contract was actually signed after the "21st meeting minutes" were issued. Kechilai denied this.
After the dispute increasingly aroused public opinion, in April 2011, the Shaanxi Provincial Government Party Group stated in the "Report on the Investigation and Handling of the Hengshan "Bolo Mine Field" Mining Rights Issue" that the contract signed between the Western Exploration Institute and Keqilai was an orphan. Contract, neither party has the original contract. The relevant confessions and evidence of the Western Survey Institute regarding the signing of the contract should be accepted, that is, this contract was to avoid the "21 meeting minutes" and the contract date was backdated to before the minutes were issued. It was a false contract signed by both parties deliberately and in violation of regulations.
At the court hearing of the Supreme People's Court on January 12, 2017, the two parties once again argued on this issue. Keqilai Company said, "The cooperative exploration contract is the true expression of intention of both parties, and there is no malicious collusion or malicious collusion as determined by the Shaanxi High Court." Behavior that harms national interests."
Zhao Faqi believes that the "21st meeting minutes" are actually the main source of a series of disputes in this case. "The 21st meeting minutes are the 'family law' formulated by the provincial government itself, resulting in the Western Survey Institute holding Thousands of square kilometers of mineral rights were transferred to various businessmen, and administrative power forcibly intervened in the market, creating room for rent-seeking by power."
"Female Hong Kong Businessman"Liu Juan
In the dispute between Kechilai and the Western Survey Institute, Liu Juan's entry into the situation is eye-catching. Public reports show that Liu Juan worked as a typist in the Shaanxi Provincial Government Office in the 1980s He immigrated to Hong Kong in the 1990s to engage in business, and later served as a member of the Standing Committee of the Shaanxi Provincial Committee of the Chinese People's Political Consultative Conference. According to the government's red-headed document, the main developers of the conversion project are Sinochem Engineering and Hong Kong Yiye, but they have signed a cooperative exploration agreement with the Western Survey Institute. At the time of the contract, only Hong Kong Yiye was left.
Zhao Faqi said, “After proving the reserves and gaining benefits, they will kick out Keqilai. "
The contract stipulates that the scope of the exploration rights is 340 square kilometers. The intensive investigation work is entirely funded by Hong Kong Yiye, and the Western Exploration Institute is responsible for the exploration and construction. The precise survey results and the increase in the exploration rights obtained through the cooperation are all owned by Hong Kong Yiye. Hong Kong Yiye only has Coal mine rights will be allocated only after the conversion project (i.e., the methanol MTO project mentioned above) is approved or implemented by the Provincial Development and Reform Commission.
On July 7, 2006, the Shaanxi Provincial Development and Reform Commission issued Document No. 677, granting 2.4 million tons of methanol MTO. The first phase of the 600,000-ton methanol project was registered; on August 24, the Shaanxi Provincial Department of Land and Resources filed a formal letter for the project. However, according to Caixin reports, Liu Juan did not obtain the exploration rights until 2016. Liu Juan, "But we still got the procedures from five departments including environmental impact assessment, safety assessment, water assessment, and land pre-examination in about half a year."
On June 5, 2007, Shaanxi Sinochem Yiye Energy Investment Co., Ltd. (hereinafter referred to as "China"). Yi Energy Investment") and Shaanxi Sinochem Yiye Energy Co., Ltd. (hereinafter referred to as "Zhongyi Energy") invested 2.29 billion yuan in the first phase of the 2.4 million tons of methanol MTO 600,000 tons methanol project and the supporting Boluojing Mine The two project companies with an annual output of 10 million tons started construction at the same time. The two project companies have a common actual controlling shareholder, Shaanxi Yiye Investment Co., Ltd. (hereinafter referred to as "Yiye Investment"). Yiye Investment was established on April 14, 2006 and has the legal representative. The person is Liu Juan.
In July 2008, Zhongyi Energy Investment changed its investors (equity). The legal shareholders were changed from Yiye Investment and Sinochem Engineering to Yiye Investment and Shaanxi Taixing Real Estate, and Sinochem Engineering completely withdrew.
In November 2008, Liu Juan began cooperation with Shaanxi state-owned Yanchang Petroleum Group. The two parties valued Zhongyi Energy Investment and Zhongyi Energy at 490 million yuan, and Yanchang Petroleum invested 249.9 million yuan, each holding 51% of the shares. The Boluo Coalfield involved in the case is still allocated to Yiye Investment, and Yanchang Petroleum intends to cooperate in its development. Zhao Faqi once reported that Yanchang Petroleum and Zhongyi Energy Investment falsely stated that they were under construction in the first phase of the Yuheng Coal Chemical Industrial Zone in Shaanxi. Valuation and expropriation of state-owned assets; Yanchang Petroleum and Zhongyi Energy jointly entrusted Shaanxi Zhengdexin Asset Appraisal Company to conduct price appraisal of the illegally mined Boluo Coal Mine, suspected of conspiring to defraud state-owned assets
In May 2013, an investigation report by the Shaanxi Provincial State-owned Assets Supervision and Administration Commission concluded. , the incident did not involve issues such as loss of state-owned assets or conspiracy to defraud state-owned assets. In fact, in June 2010, Yanchang Petroleum applied to the Shaanxi Provincial State-owned Assets Supervision and Administration Commission for the filing of an asset appraisal report. False, illegal and other issues, and the two evaluation reports were not filed. However, in 2011, the cooperation application was approved by the Shaanxi Provincial State-owned Assets Supervision and Administration Commission, but the cooperation asset evaluation was not completed.
"China Economic Weekly" reporters contacted Liu Juan many times. During the interview, his phone number was not connected.
Appeal and Report
After winning the first instance in 2006, Keqilai Company was deregistered and lost its qualification as a litigation subject because it was found to have falsely reported registered capital and other issues. Later, Zhao Faqi was also arrested by the police. wanted. In August 2011, Zhao Faqi was arrested and was found not guilty after 133 days in the detention center.
After his acquittal, Zhao Faqi once again appealed the contract dispute case with the Western Survey Institute to the Supreme Court. Liu Chang, Keqilai’s legal counsel and lawyer at Beijing Zhongwen Law Firm, revealed that on December 21, 2017, the Supreme People’s Court issued the judgment in the form of an interview. While appealing, Zhao Faqi also publicly reported a number of officials, among whom Xi Xiaoming, the former vice president of the Supreme People's Court, and Wang Zhenxin, the former director of the Shaanxi Provincial Department of Land and Resources, have now been "lost."
An insider revealed to a reporter from China Economic Weekly that from February to April 2017, the 11th Inspection Team of the 18th Central Committee of the Communist Party of China conducted a "look back" inspection of Shaanxi Province. Corruption has specifically put forward opinions, pointing out that corruption problems in mineral resource prospecting, development, operation, and state-owned companies’ capital increase and share expansion “have not yet been lifted”.
CCTV News reported that this dispute had been fought for many years due to the invisible hand of the government, and some leaders of Shaanxi Province were even involved.
Zhao Faqi said: "The essence of this case is the ownership of the exploration rights of the Polo Mine Field. This was originally a simple economic dispute case, so why did it take more than ten years?"
Until the final hearing of the Supreme Court on December 21, 2017 The verdict was that Keqilai won the case, and the contract signed by Keqilai and the Western Survey Institute was valid. Shaanxi Province has changed several leaders, and the golden decade of coal has passed. The coal mines are still idle in the Mu Us Desert. After
wins the lawsuit, according to the contract, Keqilai will also cooperate with the Western Survey Institute. Liu Chang, Keqilai’s legal counsel, said, “I recently went to Xi’an and had an interview with the leaders of the Western Survey Institute. I also sent a formal letter to the Western Survey Institute to discuss the next step of cooperation, but I have not yet received a written reply. "China Economic Weekly" reporters contacted Wang Zhanshe, the current president of the Western Survey Institute, for interviews, but received no response from him.
