The Study From The View Of Administrative Law On Agent-Construction System Of Public Works

Agent-construction System of Public Works(“Agent-construction System”) is an important system innovation during the reform of investment structure in China. As a new attempt of public-private partnership, Agent-construction System changes the role and function of government and market in the supply of public products. Agent-construction System brings about a new issue to the study of administrative law, and confronts confuses and challenges in practice which need to be responded and supported by the administrative law. This paper attempts to research on this new type of public-private partnership from the view of administrative law, lists the administrative issues confronted in the Agent-construction System practice, and comes up with the solution way and legalization suggestion through structuring the framework for theoretical analysis and investigating the status of practical experiment, so as to provide guidelines to reform practice from a public law view.This paper consists of five parts.The Introduction part mainly makes an introduction to the emerging and motive of the Agent-construction System, domestic and overseas research status, significance of the research in this paper, as well as the research idea and methods. The Agent-construction System emerges in the reason that non-business projects invested by the government are usually ultra-scale, over budget and over standard; therefore, private agencies should be encouraged to supply public products, in order to overcome the disadvantages arising from excessive direct participating by the government authorities and government-sponsored institutions in the project construction in the traditional system, to improve investment efficiency of the government, and to introduce market mechanism into public works. The emergence of Agent-construction System is to meet the current demand, and it has been authorized by the laws and regulations.Chapter 1 focuses on the relevant concepts about Agent-construction System and the administrative law issues confronted by such System. The Agent-construction System is a new type of public-private partnership with Chinese characteristics arising in the course of structural transition and marketization of the supply of public works in China, against the background of privatization in the whole world. For the public works projects invested by government, there are two modes, i.e. agent construction by enterprises and agent construction by government-sponsored institutions, among which, the agent construction by enterprises is the focus of this paper. The administrative issues confronted by the Agent-construction System, from its experiments to implementation, include, absence of legal norms, unclearness of the source of power, ambiguity of the legal nature of the agent construction contracts, unclarify of the legal relationship between the parties relating to the agent construction, lack of standardization of the implementation procedures of the agent construction, lack of government supervisory, and inefficiency of disputes settlement system of the agent construction. The above mentioned problems are typical issues confronted by the public-private partnership administrative behavior, and provide clear research scheme for this paper.Chapter 2 states the theoretical basis of the Agent-construction System. From the view of the new public management theory, the Agent-construction System promotes the transition of the completion method of administrative tasks and the transformation of distribution of public resources, which will exert significance influence on the choice of path, method and relieve mechanism for the public-private partnership in the area of public works. For the path choice of the public-private partnership, the administrative entrustment is the a type involving the most participation of the private institutions and the application of which is the widest.。Administrative entrustment has gained the legal basis on the legal foundation of entrustment, the scope of entrustment, the entrusting party and the entrusted party; therefore, the Agent-construction System choosing the mode of administrative entrustment will be beneficial to safeguard public interest and reduce the costs for exercising administrative authority. As for the method choice of the public-private partnership, the Agent-construction System chooses non-enforcing administrative acts as the first choice for government to perform its public service function. The agent construction contracts bring the contract idea of market economy into public administration, and turn into the key method of the System implementation. Agent-construction system integrates the state policy goal the positive guide, align the process of realization of the rights and pursuit of interest by administration with the realization of the administrative target, enhancing the state intrest and social public interest. In term of choosing the remedial regime for the public-private partnership, the diversification of the parties and subject matter of the agent-construction system dispute renders less effective any single remedy, therefore the integration of the remedial methods and that of the review rules are the inevitable choice in response to the dispute. Chapter 3, Evidential research of the operation circumstances of the agent-construction system. Agent-construction system establishes the poly-lateral relations amongst administrative entities, construction unit, and use unit, and has manifested evidencing idiosyncrasy of merging public and private entities in terms of the external form and internal relations of the factors of the legal relations. The balance of legal relations in respect of the agent-construction system is achieved through the contract thereof. For the purposes of achievement of the administrative target pursued by the agent-construction system, the leading position of the administrative entity in the performance of the contract shall be retained, which is not the requirement of the priority of public interest in the administrative contract but also the legal responsibility imposed on the administrative subject by the law from the perspective of realizing public administration target. However, the exercise of the leading power shall conform with the principle of proportionality and reasonableness. The pattern of the dispute of agent-construction contract is also a diversified composition, and the deviance from the present dispute resolution system constitutes the complicated and chaotic situation of the remedial method. This essay examines the operation procedure of the agent-construction system, analyzes the three agent selection procedures, namely open bidding, limited comparison and direct engagement in accordance with such values as fairness and efficiency.Chapter 4, Analysis of the Roadmap for Regulating the Agent-construction System. The resolution for perfection the agent-construction system relies on the choice of a roadmap that suits the situation of our country, and a specific, orientated, and clear plan perfected following the principles of regulated legislation, acts, contracts, regulation entity and mechanism. This essay proposes the general concept, legislative structure and content of formulating regulative methods of the agent-construction system at the state level, clarifies the relationship between the principle of legal reservation and choice of agent-construction system, establishes the principles of entering into the contracts thereof, mode of contract standardization, and dispute resolution, and analyzes, from the perspective of comparative laws, the general structure and administration model of the state and governmental investment regulation mechanism; discusses the issue of the design the regulation mechanism on the basis of research and reference, proposes the general ideal for improving the evaluation mechanism and enhance the control mechanism of investment responsibility.