A Study On The Legal Problems Related To Utilities In Public Utilities

Franchising originated from the United States, defined diversity, the international application of the international franchise association.According to the definition of the Chinese Ministry of Commerce,franchising is refers to by signing the contract, the franchisor will have the right to grant others to use the trademark, trade name, business model, such as management of resources, awarded to a franchisee to use and the franchisee, in accordance with the contract, in agreeing to the operating system in business activities, and to the franchisor pay franchise fees.We can put the profit for the franchise directory called "commercial franchising".However, this article wants to discuss the franchising is the government for the purpose of social management and the granting of social capital or investors, and signed a franchise agreement system.In the implementation process, the government must be in accordance with the provisions of laws and regulations, including procedural provisions, otherwise the investor access to public utility franchise may be revoked.In this paper, the three pipeline natural gas franchise dispute cases as the starting point,focus on the focus of controversy surrounding the case,and the current legislative provisions and the existing research results as the starting point, an attempt to analyze the legal nature of the franchise and its agreement,the way of awarding the franchise of the public utility and the legal consequences of the illegal procedure.On the five focus out of the three cases, the author thinks that public utilities franchise rights belongs to the category of the administrative license. Public utilities franchise agreements embodiment that is based on the administrative licensing is the extension and content of administrative licensing. In the process of pipeline gas franchise rights granted, once the government did not adopt the way of bidding to determine the franchisee,it is illegal. At this point, the public utilities franchise could be the original administrative authority or the original administrative organs at higher levels, the franchise agreement may be invalid. But this conclusion is only applicable to pipe gas field rather than the entire field of public utilities franchise. The way of granting a franchise is up to specific areas of specific law. Those are not the same.That is to say, because of the specific legal provisions, different project awarded the different way, leading to different consequences.In the system of legal in our country, utilities franchise mainly relies on the administrative rules and local rules. Otherwise, administrative rules lack the maneuverability, even contradictions appear between administrative rules. The disadvantages of Local rules is following: the limited applicable region, low level of effectiveness, and various between local regulations, and hard coordinate. Even a local decree clause can’t cohesion between before and after content. For the government, the local standard is not unified, and when a legal dispute, the applicable law, it is difficult to find a convenient and effective way to resolve the dispute, this greatly reduces the administrative efficiency of government, the government’s resources are wasted in virtually. The origin of the problem is that our country is still lack of a national legislation level.Public utilities franchise system in western countries appear earlier, relatively perfecter in law, such as France, Britain, the United States. Governments are in line with the principles of "legislation", keeping legislative activities and legal regulation. In addition, the UK is also equipped with specialized management institutions, at the same time the introduction of the social supervision mechanism. The legislation of the United States to introduce competition mechanism gradually, to broaden the government regulation of public utilities, and establish the corresponding supervision committee to ensure operation of public utilities. This is worth studying and reference. Of course, we must be faced with the actual situation of our country, not copying. The author put forward the proposal on the contract level(including the nature of public utilities franchise agreement, the contract signing procedure), dispute solution and risk sharing of responsibility. Put forward legislative proposals as follows:First, the level of the contract. Suggest that the legislature from the Angle of national legislation, defines the nature of the franchise agreement and effectiveness; Sign the application of contract may be mandatory regulation, bidding can be considered as a choice franchisee the only legal procedures.Second, the dispute solution and risk sharing level of responsibility. Suggestions in the act of public utilities franchise regulation utilities franchisee shall attend the corresponding insurance franchising project, when the franchisee or a credit crisis because of capital turnover difficult, unable to bear the liability for breach of contract, the insurance company to compensate for part involved in the public interest.Third, the supervision. Establish and improve the public utility franchise regulation system, the specialized regulatory agencies combined with social supervision mechanism. In terms of function, special regulators only responsible for utilities franchise with the approval of the project, provide decision-making for the government to make public utilities franchise project opinion and the suggestion.