司法实务普遍认为非法采矿罪的保护法益包括国家对矿产资源的所有权，进而认定非法采矿罪与盗窃罪系法条竞合特别关系，适用特别法优先原则，对没有采矿许可证盗采矿产的行为一律以非法采矿罪定罪处罚。但1997年《刑法》对非法采矿罪仅设定两档法定刑，最高刑仅为七年有期徒刑，量刑档次与最高刑配置均与盗窃罪相差悬殊，加之司法解释对非法采矿罪的两档法定刑配置的数额标准过高，导致司法实务中对非法采矿犯罪的惩处出现一系列问题。首先，依据非法采矿罪定罪处罚导致对盗采矿产的行为量刑畸轻，远低于适用盗窃罪处罚的刑期。其次，因非法采矿罪的立案标准过高，导致对于已经达到盗窃罪立案标准但没有达到非法采矿罪立案标准的盗采矿产行为无法处罚，出现处罚漏洞。再次，非法采矿罪的立案标准和第二档量刑档次标准同样高于掩饰、隐瞒犯罪所得罪，导致对掩饰、隐瞒犯罪所得行为的惩处重于对上游盗采矿产犯罪的处罚，引发刑期倒挂问题。这些问题的产生，不利于对法益的保护，不符合罪刑相适应原则的要求，有违刑法的公平正义。对于上述问题不能仅寄托于立法的修改，在不违反罪刑法定原则的前提下，通过解释论的途径解决问题是必要且合理的。而解决该问题的关键在于准确把握想象竞合和法条竞合的区分标准，以及合理确定非法采矿罪的保护法益。首先，应以法条关系说和规范法益同一性相结合的综合标准来区分法条竞合与想象竞合。其次，非法采矿罪的保护法益不包括国家对矿产资源的所有权，也不应形式地认定为国家对矿产资源的管理制度，而是国家矿产资源的合理开发、利用。再次，国家代表全民行使对矿产资源的所有权，而国家对矿产资源的所有权属于盗窃罪的保护法益。因此，盗采矿产资源系一行为同时触犯了非法采矿罪与盗窃罪，非法采矿罪与盗窃罪属于想象竞合关系。依据想象竞合从一重处罚的原则，适用盗窃罪对盗采矿产资源的行为定罪量刑，可以从源头上妥善解决上述实务问题，且避免受到违反罪刑法定原则的质疑。同时，想象竞合具有犯罪明示功能，以盗窃罪定罪处罚并不会妨碍非法采矿罪预防犯罪功能的发挥。最后，将国家对矿产资源的所有权排除出非法采矿罪保护法益后，需要对非法采矿罪与非罪、非法采矿罪与盗窃罪的界限重新定位，对盗采矿产资源行为适用盗窃罪划定合适的边界。

In judicial practice, it is generally believed that the protection of legal interests in the crime of illegal mining includes the ownership of mineral resources by the state. Therefore, it is determined that the crime of illegal mining and the crime of theft have a special relationship with the law, and the principle of priority of special laws is applied. Any behavior of illegally mining minerals without a mining license shall be convicted and punished as the crime of illegal mining. However, in 1997, the Criminal Law only set two levels of statutory punishment for the crime of illegal mining, and the maximum punishment was only seven years‘ imprisonment. The sentencing level and the maximum punishment allocation were significantly different from the crime of theft. In addition, the amount standard of the two levels of statutory punishment allocation for the crime of illegal mining in judicial interpretation was too high, resulting in a series of problems in the punishment of illegal mining crimes in judicial practice. Firstly, the conviction and punishment based on the crime of illegal mining result in a disproportionately lenient punishment for the act of illegal mining, which is far lower than the sentence applicable to the crime of theft. Secondly, due to the high filing standards for illegal mining crimes, it is impossible to punish illegal mining activities that have already met the filing standards for theft crimes but have not met the filing standards for illegal mining crimes, resulting in loopholes in punishment. Once again, the filing standards and second level sentencing standards for the crime of illegal mining are also higher than those for concealing or concealing the proceeds of the crime, resulting in a heavier punishment for concealing or concealing the proceeds of the crime than for the crime of upstream illegal mining, leading to the issue of inverted sentences. The emergence of these issues is not conducive to the protection of legal interests, does not meet the requirements of the principle of crime punishment compatibility, and violates the fairness and justice of criminal law. The above issues cannot be solely attributed to legislative modifications. It is necessary and reasonable to solve the problem through interpretive approaches without violating the principle of legality. The key to solving this problem lies in accurately grasping the distinguished standards between imaginative competition and legal competition, as well as reasonably determining the protection of legal interests for the crime of illegal mining. Firstly, a comprehensive standard combining the theory of legal relationship and the standardization of legal interest identity should be used to distinguish between the overlapping of legal provisions and imaginative overlapping. Secondly, the protection of legal interests in the crime of illegal mining does not include the ownership of mineral resources by the state, nor should it be formally recognized as the management system of mineral resources by the state, but rather the rational development and utilization of mineral resources by the state. Once again, the state exercises ownership of mineral resources on behalf of the whole people, and the state‘s ownership of mineral resources belongs to the protection of the legal interest of theft. Therefore, the act of illegally mining mineral resources constitutes both the crime of illegal mining and the crime of theft, which belong to an imaginative competing relationship. According to the principle of imaginative competition and joint punishment, applying the crime of theft to the conviction and sentencing of illegal mining of mineral resources can effectively solve the above practical problems from the source and avoid being questioned for violating the principle of legality. At the same time, imaginative competition has a criminal explicit function, and the conviction and punishment of theft will not hinder the prevention of illegal mining crimes. Finally, after excluding the state‘s ownership of mineral resources from the crime of illegal mining to protect legal interests, it is necessary to reposition the boundaries between the crime of illegal mining and non crime, as well as between the crime of illegal mining and theft, and to establish appropriate boundaries for the application of theft to the act of illegal mining of mineral resources.