| In the social and economic life, government investment and private investmenthave constituted two important parts of the total social investment. Governmentinvestment has attracted great attention due to its governmental capital resources andinfluences on the social and economic environment. Whether the investment decisionis reasonable, the investment objective is appropriate, the implementation process isrigorous and the supervision mechanism is complete directly determine theimplementation of equity and efficiency of government investment. Under the currenttimes background of rapid expansion of government investment scale, the accelerationof construction of government investment legal system will become the key forguaranteeing healthy development of market economic environment.Chinese government investment has experienced over sixty years' development.Its economic capability has been improved unprecedentedly especially during the lastten years. However, more and more doubts and criticism are accompanied with suchdevelopment: many problems such as lack of investment rationality, occupation ofprivate investment space and corruption widely exist in various aspects of governmentinvestment. With the establishment and implementation of local government financingplatforms, the scale of government investment will be further expanded. Increase anddeepening of resulting problems might bring government investment into a situationwhere confirmed habits are hard to get rid of. In2004, the General Office of the State Council positively explored and promoted the construction of government investmentmanagement system with the reform of investment management mode as the entrypoint. Up to now, there are over500legal documents issued by the central and localauthorities, covering each field of government investment. However, there are feweffects on solving government investment problems. The construction of legalsystems has temporarily got into the trouble of "opposite quantities and effects". Theproblem–how to implement the regression of government investment behaviorstowards rationality and legality–is urgently presented in front of us.Researches on legal systems of government investment must be clearly aware ofa basic academic logic: on one hand, legal systems are the object of legal studies; onthe other hand, they have objects of standardization restrained by them. The principleand mechanism of legal systems can only be effective when corresponding to theintrinsic nature and law of their objects of standardization. Therefore, if expecting topromote a legal system successfully, legal studies must have a detailed understandingof the object to be standardized by the system and grasp its essence. Based on thislogic, this research first discusses its object of standardization–governmentinvestment, starting from the analysis on the status quo of government investmentlegal systems, and then returns to the thinking and exploration of the system on thebasis of grasping the substantive characteristics and motion characteristics ofgovernment investment. This paper comprehensively and deeply analyzes governmentinvestment and its legal systems subject to the line "basic concept–status quo of thesystem–object of standardization–system principle–system recommendation" withthe analysis of power relationship as the entry point and the trust institution astheoretical tool. Based on this, this paper plans a macro strategic framework forlegislative practice of government investment and designs detailed system contentsfor the performance management of government investment. The research of thispaper is divided into seven chapters.Chapter I: Government investment overview. This chapter focuses on thedefinition of government investment and clear explanation of its connotation andextension."Government investment is first a kind of investment behavior". Based on this knowledge, this chapter first analyzes the concept of investment from theperspective of law and obtains four basic elements that must be possessed byinvestment behaviors: subject, capital, object and motivation. This chapter defines theconcept of government investment based on this and considers that "governmentinvestment is a business management process joined or led by the government and itssubordinate institutions with a certain amount of capitals as investment for thepurpose of obtaining certain economic or social benefits". Through analysis on suchconcepts as public investment, state-owned asset investment, financial investment,government invested projects and government invested engineering, this chaptermakes the connotation of government investment more accurate and the extensionmore clear. Finally, this chapter discusses the theoretical basis of the existence ofgovernment investment and the necessity of legal regulations.Chapter II: Status quo and dilemma of Chinese government investment legalsystems. This chapter empirically analyzes the relationship between the developmentof government investment scale, the construction of legal systems and the effects ofsystem standardization, starting from the current legal systems of governmentinvestment of China. With the rapid development of government investment,continuous efforts have also been made for the construction of legal systems ofChinese government investment. As of2010, over500laws and regulations andnormative documents have been issued by each central department and localgovernments at all levels. Meanwhile, over8000laws and regulations and normativedocuments are involved in government investment issue. However, the relativityanalysis shows that the increase of legislation number only has a high relativity withthe development of government investment scale at low effectiveness level. A paradoxis that while the legislative practice of government investment gets greatachievements with respect to systems, problems occurred in government investmenthave constantly increased and those problems become more serious, presenting aparadox of "opposite quantities and effects". The system construction is faced with adevelopment dilemma ranging from the system to legislative system. Through deeplyanalysis on these phenomena of "opposite quantities and effects", this research points out the deep causes of these paradox and dilemma from four aspects–logic of rights,object of standardization, legislative way and the complexity of system.Chapter III: Analysis on interests (rights) and intrinsic rules of governmentinvestment. This chapter returns the perspective of research to the object ofstandardization of government investment legal systems–government investment.This chapter first analyzes various interests phenomena and rights phenomenainvolved in government investment and points out that various capitals occurred ingovernment investment are owned or invested by the people (or citizens). Thisresearch considers that government investment is a kind of rights phenomenon and itscore content is the fiduciary relationship between the government's trusteeship andcitizens. This paper reveals the fiduciary structure in government investment andvarious internal and external interests and rights elements through the analysis methodof rights relationship; further describes the intrinsic features and rules of governmentinvestment through analyzing the correlation and interaction between these elementsand the characteristics of motion of interests and rights transfer; points out that theinstability of this fiduciary structure is the natural defect of government investmentand the stance of effects of various factors and influences of various relationships.Thereby, the maintenance of stability of fiduciary structure should be the system corewith more realistic significances.From Chapter IV to VI: based on full cognition of substantive characteristics ofgovernemnt investmwnt and internal rules, ths research in this part returns tosystematical layer for theoretical exploration. Ponder over legal systems from threeaspects including decision making, execution and supervision through three-sectiondecomposition of government investment behaviors.Chapter IV–deliberation of legal system of government investment decisions.The research of this chapter points out government investment mainly includes twotypes of decision-making behaviors: budget decision and specific item decision.Through structural analysis of the process of budget decision, reveal the dependenceof budget decision on internal power arrangement of administrative system and therationality and efficiency; and through back tracing of the decision process of certain government investment project and setting historical changes of specific governmentinvestment direction, reveal the decision process of specific projects and governmentbehaviors. Taking fiduciary structure of government investment as the tool, throughanalysis of government investment decision behaviors, point out effective mechanismof regulation is: obstruct various external factors and relations that may affect thefiduciary structure and cut off influencing paths of external factors through systemdesign; meanwhile, carry out system design in the internal of the fiduciary structure,taking government's fiduciary as the standardization object and reduce the possibilityof decision-making subject being affected.As for budget decision, point out the characteristics of budget decision: take theprofit maximization of the beneficiary as the staring point; reveal power subject statusof the government and the competitive relation among powers and its impact on thebudget decision and the nature of the behavior; further, through institutionalization ofgovernment investment "strategic objective", arrangement of "governmentexpenditure liability" system and budget decision liability system, get rid of theimpact of factors including power subject status of the government on the budgetdecision; meanwhile, reach the purpose of standardizing the fiduciary's decisionbehaviors through construction of "performance budget". As for specific projectdecision, through analysis of internal elements and external elements, point out theproject decision principle of "internalization of external elements", and put forwardinstitutional relief methods including "reverse testification of great project", earningstarget appraisal and external factor selection.Chapter V: deliberation of legal system implemented for government investment.The execution process of government investment essentially is the process ofrealization of power transfer with the help of power delivery system. Since these aretwo completely different systems, they abide by different internal logics. Powerdelivery system cannot provide contractual restraint required for power transfer indifferent subjects. The institutional potential energy in the system inevitably leads toinstitutional consumption of power. Therefore, institutional effect is to make powertransfer return to proper logic in nature not formally through standardization and restriction of power system.This chapter along two thoughts (budget execution and project execution)discusses legal systems of the executions processes respectively. The executionprocess of budget funds includes fund management system and budget regulationsystem. Aiming the execution process of budget funds, first discuss the influence ofpower system on management of local government financing, fund appropriation andfund use and the defects of existing systems and put forward correspondingsuggestions on systems. Second, aiming at various possible causes of budgetregulation, analyze and classify them and point out the cause of intentional regulationis the dual identity of self power subject status and power subject status of thegovernment and raise standardization principles to ensure just proceduresThere are mainly three processes during execution of projects including bidingand bid invitation management, contract management and construction management.Put forward suggestions on systems one by one through analysis of the impact ofpower system on each process. First, aiming at biding and bid invitation process, putforward rigidity of open bid invitation, mandatory resource integration and perfectionof relief rights of bidders and other relevant systems; second, with regard to contractmanagement, discuss possible illegal behaviors of power subject status of thegovernment according to contract conclusion stage and performance stagerespectively, and analyze internal causes and corresponding institutional relief.;finally, aiming at construction management, in accordance with the implementationprinciples of marketization operation, offer suggestions to perfect project legal entitysystem, project agency system, regulatory detailed planning procedure, independentsupervisor qualification and supervisor responsibility system etc.Chapter VI: deliberation of legal system of government investment supervision.This chapter starts with the fiduciary structure of government investment and answersquestions including the purpose, object, link and way of government investmentsupervision in principle. Point out although the power of supervision cannot bedirectly exercised by the citizen as the beneficiary formally, this right must bemastered and controlled by the beneficiary finally substantially. Only in this way, supervision can reach the due effect.This chapter sets various links during the process of government investment, andclassifies them according to the procedure and link of government investment. Theyare basically classified into four types: examination and approval supervision, auditsupervision, construction supervision and use supervision. As an efficient andlow-cost supervision way, performance management can be widely applied to eachlink of supervision and each type, such as management by objectives in examinationand approval performance management, fund assessment management in auditperformance management, assessment management in construction performancemanagement and feedback management in use performance management etc. Torealize that supervision power belongs to citizens finally, institutionally, it is requiredto establish supervision system for supervisors and corresponding performance system,thus generating the supervision chain. Regardless of how the supervision chainextents, only with "all for citizens" as the end point, it can be guaranteed thatsupervision will not become a mere formality.Chapter VII: Conception and suggestion on legal system of governmentinvestment. On the basis of full consideration of decision, execution and supervisionof government investment, this paper puts forward strategic ideas and a series ofspecific suggestions for legal system of government investment from two perspectivesincluding legislation practices and performance management. First, in terms oflegislation practices, this research considers it is required to return to power view soas to ensure power is the basic starting point of legislation. The strategic frame ofsystem construction is raised based on this: take the way of mutual coordination,promotion and common development of substantive law-procedural law–litigationsystem; emphasize the core that the substantive law is based on rights and fiduciaryrelation; make full use of the promotion effect of procedural law legislation onsubstantive law legislation; give play to the promotion significance of litigationsystem on procedural law. Second, aiming at the transition of performancemanagement system, analyze the substantial content and great significance of thetransition from "input–process control" to "output–effect control", discuss the content of performance management in details and workable types and point outevolutionary strategy required for performance management system reform andintroduce the specific steps. Based on this, analyze budget and performancemanagement system of significant project separately. In addition, analyzeindependence system of evaluation units and responsible persons system and thenecessity. Finally, this research considers performance system transition practicesmust be combined with political system and the reform and make full use ofcompetition factor in political system to give play to its due effects.
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