A Study On Legalization Of Cooperative Administration

Public administration is the activity of dealing with public affairs, which mainly embody themselves in the provision of public goods or services. Before the 1970s, it is generally believed in political and economic field that the provision of public goods and services is just one of the exclusive functions of the government, and that the public goods and services used to meet public needs should and can only be provided by the government that serves as the public institutions. The consensus results in the governmental monopoly of the public affairs as well as the administrative activities. Since the 1970s, however, the global reformation of public administration has deleted part of the services from "public" areas on one hand, and made non-governmental forces gain power gradually in the processing of the affairs of public administration on the other. So far, the logical relationship between the public administration and the government has also changed. Besides the government departments in the administrative activities, the non-governmental body is playing an increasingly important role in the processing of public administration. With the exception of the single entity of the government, in the main structure of public administrative,the non-governmental body has been an efficacious resource of public administrative activities. And public administrative activities are taking diversified forms of mutual interdependance, consultation, and cooperation between the governmental and the non-governmental institutions, which is referred to as"cooperative administration". The activities that the governmental and non-governmental institutions commit to public administration show a new picture of administrative activities for the people. The present study, on the basis of the relationship between the administrative and legal changes, investigates the"cooperative administration"within the framework of the rule of law, and tries to find out the legal back-up for the healthy functioning of cooperative administration, and thus realize the synchronous innovation of relevant legal theory. This study is divided into four chapters.The first chapter mainly introduces the historical background of the cooperative administration and cards the practice of cooperative administration in different countries. From the period of liberal capitalism, the scope of governmental functions experienced three developmental stages, and the ideal form of the government has also experienced such stages from the"laissez-faire government", to the"omnipotent government"to the"limited government". The cooperative administration comes from the reformation of the modern public administration which is oriented to the"limited government". The cooperative administration means the processing of public affairs by the governmental and nongovernmental institutions together. After years of exploration and practice, the cooperative model between"the government"and"the nongovernment"takes various forms such as franchising, contracting-out, administrative assistant, administrative commission, expert participation, grants and so on.The second chapter discusses the theoretical reasoning of cooperative administration. Firstly, the study denies the rationality that the government should monopoly the public affairs through analyzing the logical defects of the omnipotent government, which are mainly embodied in three aspects: the hypothesis of"Charity Government", the negligence of deviations of agent activities, and the inadequate cost-benefit comparison of solving external problems. Secondly, the study reveals the necessity that the government intervenes in the public affairs through analyzing the limitations of privatization of public administration, which originate mainly from the conflict between the non-exclusivenes of public goods or services and the profiteering of private institutions, the conflict between the natural monopoly in the industry owned by the public goods or services and market competition, and the conflict between the concept of"consideration of survival"and the private selfishness. Finally, the study demonstrates the possibility that the governmental and the nongovernmental institutions may deal with public affairs cooperatively on the basis of different theoretical opinions. The detachabiligy theory of production, supply and that of industry shows the possibility that the private sectors may participate in public affairs from vertical and horizontal dimensions respectively. It is also possible for the governmental and the nongovernmental institutions to cooperate on the occasion where public and private goods are provided in tying arrangement. In addition, from the extended utility function, the nongovernmental institutions can also take the initiative to participate in public affairs yet without intending to gain profit, if there is an appropriate incentive system. The third chapter is a general theoretical analysis of the legal regulation of the cooperative administration. First of all, on the basis of arguing the constitutionality of the cooperative administration, the study, focusing on the constitutional principles, tries to find out the basic direction of legal reformation at the age of the cooperative administration from the value pursued by the constitutional principles of the modern constitutional countries. Subsequently, the study introduces and analyzes the specific ways of legal reformation from the legislative control of cooperative decisions, the governmental regulation in cooperative processes, and the judicial relief of the controversy of the cooperative administration based on the developmental stages of the cooperative administration. The legislative control of cooperative decisions includes legal reservations and due processes. According to the theory of"reservations of important matters", the principle of legal reservations should be applied to the decisions concerning the administration commission and the franchise of the public utility in the cooperative administration. The due processes of cooperative decisions should include the competition mechanism among private practitioners, public participation mechanism, information disclosure mechanism, and the reasoning exposure mechanism. The cooperative administration results in the fact that part of the administrative tasks are performed by the nongovernmental force. In this case the role of the government has changed from the direct provider into the supervisor, and thus the responsibility of the government has changed from the past"performance duty"to"guarantee duty". In this way, the government should prevent"market failure"which may cause the loss of efficiency with the help of effective regulatory system, and curb all the opportunistic behavior in the market so as to ensure the public interest. With large-scale implementation of the cooperative administration, traditional regulatory measures have demonstrated weakness. In the face of the difficulties in governmental regulation in the cooperative administration, the regulatroy reformation should have a comprehensive development, which concerns the entities of regulation, means of regulation and regulatory procedures. The main theoretical issue of legal disputes which may arise in the cooperative administration mainly lies in the disputes between the government and the cooperative nongovernmental institutions. The judgement of the legal nature of"cooperative contract"is the key to determining the judicial solution. This study, by comparing the distinguishing criterion between the civil and the administrative contract in civil law countries as well as considering the reality of legal theory and system in china, believes that such contracts used in contracting-out, administrative assistants, expert participation should be considered to be the civil contract, and the contract used in administrative commission and the franchise should be considered to be administrative contract.The fourth chapter discusses the legalization of the cooperative administration in china. The study tries to give the relevant ideas of constructing institutions from legislation, governmental regulation and judicial relief through analyzing the specific problems in the practice of the cooperative administration. First of all, the improvement of the legislative level includes the following aspects. Concerning the decisions over the commisson of public power and the franchise of public utility, emphasis should be given to the application of the principle of legal reservation; a reasonable norms of entities about the decisions of the cooperative administration should be formulated in order to make clear the objective conditions of the cooperative administration and the qualifications of private institutions; the relevant processes should be further improved to solve the conflict among various procedural norms and to design the effective system of public participation. Secondly, the regulation system should be reconstructed, which includes: setting up comparatively independent regulatory agencies and allocating regulatory powers reasonably; concentrating on the details about the operation of public affairs, and improving and developing the existing regulatory measures; emphasizing public participation in regulatory processes, designing the systems of public participation and making them effective. Finally, the mechanism of administrative litigation about administrative contract should be constucted to provide effective judicial relief for the disputes of the administrative contract possibly existing in the processes of the cooperative administration. In the design of the mechanism attention should be given to the following aspects: establishing the complete jurisdiction of the court; reconstructing the litigant system of administrative proceedings, thus confirming the legal status of the third party and the right to sue of administrative party; formulating rules of evidence of the administrative contract litigation; application of the principles of mediation; and increasing the type of judgment on prestation, thus enriching and improving the connotation of the confirmatory judgment and the judgment of modification.