On The National Liability For Warranty After The Privatization Of Welfare Administration

The theory of state gew?hrleistungsverantung put forward by German scholars is important and is a fundamental responsibility that the state shoulders after the administrative tasks are privatized. Study on the theory of state gew?hrleistungsverantung is significant in theory and practice. It is beneficial to make clear what state and government gew?hrleistungsverantung and obligations are, to construct a legal mechanism of scientific state gew?hrleistungsverantung, to push the smooth advance of the privatization of payment administration, and to guarantee the legal rights and interests of the public and customers. This essay from the perspective of administrative law centres on state gew?hrleistungsverantung in accordance with the logical thinking from “ the changes of post-privatization state responsibility – state gew?hrleistungsverantung – the legislative practice and revelation of state gew?hrleistungsverantung – the introduction of state gew?hrleistungsverantung – the construction of state gew?hrleistungsverantung in China. The essay utilizes the theoretical tool of administrative law to mainly explore the issues like the fundamental theories of state gew?hrleistungsverantung and the mechanism of state gew?hrleistungsverantung. Accordingly, the essay puts forward feasible suggestions for each issue. The whole essay has five sections except the introduction section.The introduction section mainly introduces the research background, raises relevant issues, briefly summarizes the domestic and international research literatures about state gew?hrleistungsverantung, briefly narrates the theoretical significance and practical value of studying on state gew?hrleistungsverantung, and explains the research methods and research innovation adopted in this essay.Chapter I is the rise of the privatization of payment administration and state gew?hrleistungsverantung. First, it narrates the definition, category, pattern, theoretical and constitutional basis of the privatization of payment administration. Second, it analyses why the state should shoulder gew?hrleistungsverantung after privatization. It demonstrates that the rise of state gew?hrleistungsverantung is a result of Neo-liberalism, the privatization of administrative tasks, and other factors from jurisprudence jointly push.Chapter II is about the basic theory of state gew?hrleistungsverantung. It narrates the definition and characteristics of state gew?hrleistungsverantung, the relationship between state gew?hrleistungsverantung and state responsibility for compensation, the nature, status, theoretical basis, main content and category of state gew?hrleistungsverantung, and the legal relations of gew?hrleistungsverantung and others. More specifically, this chapter firstly defines what state gew?hrleistungsverantung is and holds that the definition can be divided into broad sense and narrow sense. This essay adopts the narrow sense definition—that is, after the privatization of administrative tasks the state is bound to utilize public power or non-public power to exclude and prevent unfair competition and market failure, and to continuously guide, supervise, control, adjust and affect the process and consequences of performing public tasks by private sections in order to positively promote the private sections to complete administrative tasks with expected quality and quantity. The chapter also shows that state gew?hrleistungsverantung is characterized as persistent, legal, initiative, and well-rounded, and it has the nature of public responsibility and expected responsibility. Second, this chapter states that the theoretical basis of state gew?hrleistungsverantung includes the theory of gew?hrleistungsstaates, auxiliary theory, the function of protection obligation of basic rights, and the theory of the state and society cooperate. Third, it discusses the main content of state gew?hrleistungsverantung is the warranty of maintaining unfair competition order and providing products and service. State gew?hrleistungsverantung can be categorized as the responsibility of state control, state supervision and state take-over. Finally, it discusses the legal relations of state gew?hrleistungsverantung. This type of relation is multi-faceted. It can be the relation between the state and private institutions, between private institutions and the public, and between the state and the public.Chapter III is about the legislative practice and revelation of the theory of state gew?hrleistungsverantung from foreign countries. It mainly focuses on the relevant theory in Germany and Taiwan. In Germany, many laws have already adopted the theory of state gew?hrleistungsverantung and applied it into legislation, such as “Federal Basic Law”, “ Telecommunications Act”, “ Corporation Cooperation Promotion Act” and the draft reversion of administrative contract in administrative procedural law in recent years. Similarly, Taiwan based on the theory of state gew?hrleistungsverantung legislates many important administrative laws, such as “ Act for Promotion of Private Participation in Infrastructure Projects” and the rules for its implementation, ten types of “Approaches for Infrastructure Operation Takeover”, “The Regulation for the Supervision of Private Operation on Utilities”, amended “ Telecommunications Act”. It can be learned from those practices that the transformation of state theory necessarily changes the administrative law system, and that the privatization of payment administration needs a complete set of administrative law system to regulate and safeguard.Chapter IV is about the introduction of state gew?hrleistungsverantung and the review of our legal system. It briefly discusses the necessity of introducing state gew?hrleistungsverantung, the potential problems caused by such an introduction, and its significance. Meanwhile, it utilizes state gew?hrleistungsverantung to review the current situation of our infrastructure and payment administration in administrative law system to conclude that China urgently needs to introduce the theory of state gew?hrleistungsverantung and to construct the implementation mechanism for state gew?hrleistungsverantung.Chapter V is the construction of the implementation mechanism for state gew?hrleistungsverantung. First, it discusses the principles of constructing the implementation mechanism for state gew?hrleistungsverantung. Second, it discusses this mechanism from the aspects of the responsibility of state control, state supervision and state takeover respectively. More specifically, the construction of the mechanism of the responsibility of state control mainly focuses on constructing mechanisms of benefits evaluation before privatization, the selection of qualified private institutions, asymmetry control, price and quality control and others. The construction of the mechanism of state supervision mainly focus on constructing mechanisms of the supervision of the use of state subsidies, mandatory disclosure of quality information, self-supervision, post supervision evaluation, the supervision of the maintenance of private institutions’ capital, and the supervision of abuse of dominant market position and others. In contrast, the construction of the mechanism of state takeover focuses on the requirements, phrases and time limit in the process of constructing and operating such mechanism, on the procedural mechanism, the mechanism of state takeover at the time of terminating the licensed contract and the takeover mechanism of financing institutions and guarantors.