Studies On Administrative Law In Public-Private Partnerships

In a democratic state ruled by law, public-private cooperation should be seen as an important symbolof government reforms, government function transferring from public sector to private sector, showingthe dynamic relationship between the mutual cooperation between public and private sector. However,public-private cooperation must be based on the rule of firm law, not only needs to begin in the cultureand notion, but more need to cooperate in the system. The Constitution of the Republic of China hasbeen just thirty years since announced in1982, and social development has gradually pushed forwardeconomic development toward political development; however, related construction of rule of law is notperfect, the concept of the rule of law is still not mature, and even lack experience in public-privatecooperation. Therefore, it is quite worth pondering whether China’s social environment has already metthe hardware and software environment for public-private partnership.This paper has several directions to explore. The first chapter is the basic concept of public-privatecooperation. Discussion on the problem of private sector assimilating administrative tasks, whichbrought the result of public-private cooperation. With the development of modern welfare state, thepublic sector perform administrative tasks both in fact and in finance has been demanded more; forexample, by taking on too many administrative tasks turn to be a lot of executive deficits; theunreasonable administrative organization system leads to low administrative efficiency; owing to thestate financial constraints’ impact, public sector cannot independently take on fiscal expenditure whenrequired to perform administrative tasks. Public sector of modern welfare state has encountered greatdifficulties in the implementation of the administrative tasks, so the introduction of private sectorparticipation will play a part to solve problems above in a hopeful public-private cooperation way.The second chapter is the study of public-private partnership model, that is the ppp. In this paper, thepublic-private partnership model is divided into five kinds, respectively legal mode, authorization model,trust model, private law mode, privileged mode, and explains roles between public and private sector, aswell as the specific cooperation mode in public-private partnership. The third chapter is to discuss the consideration of public-private cooperation. Considering potentialproblems in the public-private partnership system, this paper included the protection of the rights,private sector participation, public option, range and relief problem etc..The fourth chapter is the legal responsibility of public-private cooperation. Public-privatecooperation does not mean the public sector no need to assume legal responsibility. Instead, the publicsector still should be responsible, but the burden of what responsibility is unclear. On this basis, it canbe more clearly defined the legal responsibility of public sector when administrative tasks transferreddto belonging to private sector, meantime involving application problems between the "StateCompensation Law" and "Tort Liability Law". In addition, in franchising public property, how to definerelated state compensation and how to be applied in Chinese law are still in question.The fifth chapter is to discuss the case of public-private cooperation. It mainly introduced the casewhich occurred in Taiwan area in recent years,also in-depth study of its derivative problems ofpublic-private cooperation.The sixth chapter discusses the legal norms of public-private partnerships. Due to public-privatecooperation, modern public sector transfers the role gradually from control-output toguarantee-cooperation. However, by means of public-private cooperation, this does not mean that theadministrative tasks in public sector should not be responsible for the execution, since public-privatecooperation narrowly represents the function change of public sector; therefore, public-privatecooperation has a must to establish a set of legal norms.The seventh chapter is the evolution trend of public-private cooperation. Under the conceptof"national co-operation", public-private cooperation is becoming to be paid much more attention,involving public-private partnership and the legal relationship in public construction. However, inaccordance with the design of existing legal system, this belongs to the government procurement law,thus it can be defined as an administrative contract. However, such cooperation contracts ofteninvolve significant investments and public interests, if put under the framework of the legitimacy ofthe government procurement law a bit challenging, it seems unable to cope with the new problemssimply according to traditional administrative contract theory. Therefore,"administrative law ofcooperation" will be the new highlight of the future administrative law. Final part is the conclusion. In view of the complexity of the legal relations after public-privatecooperation, this paper suggested that in the implementation of relevant policies and the construction ofrelevant system, the followings must be achieved: to ensure protection of the rights, to ensure clear theauthority and responsibility, to ensure eligibility of public-private partnerships, to ensure effectivesupervision mechanism, and to ensure effective relief procedure.