Legal Regulation Of The Temporary Takeover Regime Of Municipal Utilities Franchise

After the privatization of municipal public utilities,to a certain extent,the participation of the private sector reduced the government's financial burden,improved the administrative efficiency of the government,and solved the practical problems of waste of resources and corruption of power.However,with the gradual deepening of privatization reform,there has been a tremendous conflict between the social public interest and the profit-seeking nature of the private sector.In the course of franchising,franchise enterprises of public utilities often fail to perform their responsibilities out of interests.For example,they refuse to load old people,refuse to operate remote routes by public transportation,and they have poor service quality,or shut down franchise companies without permission,or run franchisees poorly leading to bankruptcy,which not only gravely infringed on the public interest of the general public,but also hindered the privatization of municipal public utilities.In order to ensure the continuity and stability of the supply of public services,it is quite necessary for the executive agencies to temporarily accept and manage the franchising enterprises when the special circumstances arise.The temporary takeover regime of municipal utilities franchise rises at the right moment.In the course of franchising of municipal utilities,the participation of the private sector does not mean that the state withdraws from public utilities entirely.It doesmean that the state becomes a supervisor from the implementer of public utilities,and guarantees the continuity and stability of public goods and public services.As a manifestation of the state's supplementary liability after the privatization of administrative tasks,the temporary takeover has its legitimacy and necessity.The provisions of the Constitution,Administrative Compulsory Law and Administrative Licensing Law of our country as well as the principle of universal service,the principle of continuous service also constitutes the basis for the legitimacy of temporary takeover.However,in reality,due to the lack of strict procedural control,the executive authorities has too much administrative discretion in the implementation of the temporary takeover,which leads to collusion between government and industry,abuse of administrative power and even the violent takeover phenomenon.It not only undermined the franchise enterprises' legitimate rights and interests,but also affected the public interest.Through combing many cases of temporary takeover in our country,we can see that there are three prominent problems in the practice of temporary takeovers: one is the confusion of the subject of temporary takeover and the other is the inaccurate method of temporary takeover,and the third is the tiny strength of supervision by the public.In addition to the problems of these real cases,due to the lack of unified legislation on the regime of temporary takeover,there are still many problems with the legislative provisions of the central and local governments regarding the regime of temporary takeover.First,the legal hierarchy is too low.Second,the provisions are too fuzzy.Three is the lack of specific procedural rules,resulting in a certain degree of abuse of the temporary takeover.When arises the emergencies of threatening or endangering the public interest or public safety,the administrative authorities often lack effective investigation and take over.This "lazy governance" thinking makes the privatization of public utilities a historical retrogression.Temporary takeover,as an administrative coercive measure,which has compulsory,promptness and discretion,can help deal with emergencies and eliminate emergency risks promptly and effectively,but also can threaten or even damage the legal rights of franchise enterprises easily.Therefore,the implementation of the temporary takeover shouldcomply with the requirements of the principle of due process and the principle of proportionality,which not only guarantees the substantive justice but also guarantees the procedural justice.Combined with the above characteristics and current situation of the temporary takeover regime in our country,we should meet certain requirements when establishing the substantive norms and procedures for the temporary takeover regime of the public utilities franchise.First of all,we should solve the crisis of legitimacy of the temporary takeover regime,and the "Administrative Measures on Municipal Public Utilities Franchise" should be promoted to the law,and the subject and applicable conditions of the temporary takeover should be ascertained.Second,the design of specific rules of procedure should be strengthened in time,procedure,order and other procedural elements of the standardization,and enhance the practicality and operability.Third,this article will put forward some views for improving the public supervision committee,the relief and compensation of temporary takeover regime,making the temporary takeover regime more successful.