The Study On Concession Contracts Of Public Utility

In a concession contracts of public utility, a public authority grants specific rights to a private or semi-public company to construct, overhaul, maintain, and operate infrastructure for a given period. By contract, the public authority charges that company with making the investments needed to create the service at its own cost and to operate it at its own risk. The price paid to the company comes from the service's users, the public authority, or both. In recent years, more and more public utilities were concessioned. State-owned companies have been important in China concessions. Systems vary among countries, for example, in how they share risks between the concession authority and the concession company. As the public utility has grown denser, attributing commercial risk has become more difficult. Increasingly, public authorities must play a greater regulatory role. Already, bad experiences have made the private sector reluctant to bear the commercial risk. And the commercial risk is sometimes too great to be carried by the concession company alone. Commercial risk should be controlled by mechanisms incorporated in the contract, but control of the commercial risk must not eliminate incentives. In addition to safeguarding the community's interests, the public concession authority must increase citizen awareness about concession decisions, to ensure their social acceptability. Since 2003 China has experienced an unprecedented process of transfer of state-owned public utility to the private sector, both by selling assets and by contractual agreements (concessions) with or without exclusivity. In general, but not always, the sectors involved have been characterized to some degree by economies of scale and scope, which, in turn, required the direct regulation of the private firms. Now, many problems has appeared in the Public-Private Partnership process in China. The paper can be regarded as a striving for a comprehensive account of such matter. In some extent ,this paper is part of a larger effort in the institute to promote best practice in the regulation of Public-Private Partnership process of publicutility.This paper bases its study on the a practice and theories of Public-Private Partnership of public utility in this country. It also absorbs and uses for reference the experiences and research achievements of the administrative law of the foreign countries, especially of the western developed countries, such as U.S.A., Australia. This paper has preliminarily formulated a theoretical framework of concession contracts of public utility. The paper is divided into three parts.The First chapter, "General Theories on concession contracts of public utility", fall its focus on legal ideas and doctrines involving concession contracts of public utility. The author starts with definitions of public utilities. Noting the different definitions approach to concession contracts of public utility from various national act, the author arrives at her own definition concession contracts of public utility. That is, concession contracts of public utility refers one kind of administrative contracts, In which a public authority grants specific rights to a private or semi-public company to construct, overhaul, maintain, and operate infrastructure for a given period. Then author sector concession contracts of public utility by different criterions to deepen the concept. The author describe the features and functions of concession contracts of public utility. The author believes the system of concession contracts of public utility has the function to prevent and refrain the dispute to promotion the management of government, to protect the rights of private parties. The concession contracts of public utility is a legal file to regulate the public utilities privatization. To make it clearly, the author compare concession contracts of public utility to civil concession contracts. These general analyses of concession contracts of public utility construct the basement of the coming parts.The second chapter, "Theoretical foundations for concession contracts of public utility", briefly reviewing the Theoretical foundations from different approach. The theory of concession contracts of public utility determines the status of the institution of concession contracts of public utility. But fewscholars discusses the topic. The author starts with liberalism of jurisprudence theory which related with concession contracts of public utility. The legal philosophy (jurisprudence) believe everybody has the right not to be bothered or restricted by the government under bad law and private parties has the right to run a public utility. In economic theory, competable market theory and property theory think public utility can promote their efficiency through concession contracts, bring public interest to the society by administrative power. But the theory of public choices clarify a negative painting testifies the administrative agency is selfish economic person, who would abuse administrative power to private interest and betray public interest. So concession contracts of public utility power been accepted as desirable administrative device to enforce public policy, but it has danger to be abused by administrative bodies and must be under the rule of law. we should keep the independent value of power controlled by right, we must regulate the administrative power by legislation ,administrative procedure and judicial review. Administration theory, which relates administrative bodies how to promote management for public interest, also think concession contracts of public utility is a better way to improve management of public utilities.In the last chapter, "Institutional construction of concession contracts of public utility", the author first represents the unfavorable situation of concession contracts of public utility and give them institutional reasons. The leaky system of concession contracts of public utility give concession contracts of public utility too much space to abuse administrative power and too much legal vacancy to guide administrative agencies to finish their work. Some administrative bodies use concession contracts of public utility power to make money for the agency or themselves under no legal control because no law has been made to abide by and no efficient supervise agency or system exist. Then the author offers the author's suggestions for reform of concession contracts of public utility. The author lists four legal principles for of concession contracts of public utility and explain them clearly one by one...