| Since the establishment of the China State Electricity Regulatory Commission (SERC) in2003, it has been in a regulatory void predicament and has long been overhead performedpower by large electric companies. The market-oriented reform of the power sector that itcharged has remained free in the edges so far. This situation is one of the institutional reasonsfor the inefficiency and lack of sustainability in China’s power industry. In order to promotethe market-oriented reform of the electricity sector, to improve its efficiency, and to enhancecapacity for sustainable development of the power industry, the institutional reform of theState Council in2013the canceled the SERC, the electricity regulatory functions are allocatedto the newly established National Energy Administration. Can the National EnergyAdministration get out of the original regulation invalid jams of the SERC? Or, how canChina get rid of the electricity regulatory invalid dilemma? From the perspective of law, theanswer to this real problem of China, relies on the exploration on the basic theory ofelectricity regulatory authority configuration: how should we get to a reasonable and optimalconfiguration on electricity regulatory authority? Or, how to configure the electricityregulatory authority can we have the proper degree of legitimacy or even higher?(Legitimation equals reasonable, the higher the degree, the more gifted.)The purpose of this study is to provide a legal basis and institutional design to optimizethe allocation of regulatory powers for the China’s power in three steps in the research path(sothat it has a legitimate and even higher justification): first, to provide a theoretical basis foroptimizing the configuration of the China Electricity regulatory powers by establishing theelectricity regulatory authority configuration theoretically legitimate state; secondly, toprovide factual basis for optimizing the configuration of China’s electricity regulatoryauthority by establishing the state of the real China electricity Regulatory power configuration;finally, on the basis of the aforementioned research, on the full consideration of the nationalcharacteristics of China’s power industry, focusing on the problems that exist in the realcondition of the configuration of China’s state electricity regulatory authority, to come up witha specific design to optimize the configuration system of China’s electricity regulatoryauthority.Addition to the introduction, the paper totaling five chapters, adopting syllogism logical structure. The theoretical basis of the configuration of the electricity regulatory authority partand the performance and lessons which the advanced related extraterritorial legislativepractice of other countries have provided are the major premise of the full text, the real stateof China Electricity Regulatory authority contingent configuration part is the minor premise，optimization of China’s electricity regulatory power configuration will be the conclusion. Thefollowing will introduce each part’s main logic and main content.The part of the theoretical basis of the major premise, including the first three chapters,will do research on the legal characteristics of contents, the government’s regulatory powers,the inherent concepts and system performance and even better sound electricity regulatoryauthority configurations, the performance and lessons which the advanced relatedextraterritorial legislative practice of other countries have provided,to provide theoreticallymeasure to optimize configuration for China’s regulatory powers, is the focus of the full text.Where:The first chapter defines the basic concepts involved in the electricity regulatoryauthority, and to address “what kind of power the electricity regulatory authority is” issue,“Regulation” is a controversial concept, the "regulation" in law that identified herein this textis “marketing regulation” for short. It refers to the main activities of the behavior of marketintervention in the condition of the market economic system, in order to correct and improvemarket failures through the development of state organs and enforcement of laws andregulations. The power of Government regulation is a new authority that produced to dealwith the complex realities of modern society instead of the traditional jurisdiction, with thepower of public, quasi-judicial, initiative and a collection of features, it will develop andmature as the market economy continues. These features make the regulation power bothsame and different with executive power and jurisdictions in the traditional theory, alsodetermine the similarities and differences between the new government regulatory regime andnorms of traditional public power system. The features of the government regulation abovedetermine characteristics that a reasonable government regulatory regime should have: itshould ensure that the public interest purpose of the government’s regulatory powers andlimitations; it should ensure that the apolitical and external legal status of governmentregulatory bodies, the independence and separation on the internal structure and profession ofthe regulators; should decentralize the government’s configuration and check and balance theregulatory powers. As a kind of government regulatory power, the system to configure electricity regulatory powers of the electricity regulatory authority, of course, should have theabove characteristics of the government regulatory regime.The second chapter focuses on the theoretical basis of the electrical regulatorypowers,which include the basic and legitimacy conditions of the configuration, the valuetarget and the path of configuration regulatory powers,to address there problems that “underwhich condition, can government be authorized power to regulate electric industry”"What isthe purpose of electricity regulatory powers granted to the government" and “how should wespecifically configurate the electricity regulatory authority”. The traditional economicregulation theory (the theory of public interest, departmental interests theory), publiccompulsory theory and incomplete legal theory in the economics explained problem on themechanism of establishing the legitimacy of the government regulatory powers (substantivereasonableness). Power industry is a special industry that can not be effectively allocate bymarket, it’s chartered with objective economic and technical factors, such as naturalmonopoly and competitiveness, commonality and irreplaceability, positive and negativeexternalities, fragility and unity. The features provided a de facto basis to prove the legitimacyof the existence of electricity regulation. Following the aforementioned theory, based on theobjective characteristics of the power industry, the four basic legitimate conditions ofconfiguration of the electricity regulatory authority can be derived:“market failure in thepower industry, power regulators aim to safeguard the public interests, power regulation bethe optimal public control strategy response to the electric power industry market failure,people had to bear the cost of government’s regulation on the power industry”. Only when thefour conditions are fully satisfied, can the configuration electricity regulatory authority belegitimate. the higher the level of this satisfaction, the higher legitimate degree the electricityregulatory authority can configure, meanwhile, if anyone of the conditions is not satisfied,then the configuration of the electricity regulatory authority lose its legitimacy.The efficiency of market economy and the legitimacy of configuration on electricityregulatory power in a Community-based view of economic law determines the electricityregulatory authority’s value goal should be fair and efficient. To configurate the fair andefficiency value of the electrical regulatory powers, to make them both unite and conflict andmatches each other is the basic principles of their relationship. Only when we take efficiencyand fairness as the target value, the configuration of power can has the rationality ofessentially on configurating electrical regulatory powers.The basic conditions for the legitimacy of the configuration and the value target of the electricity regulatory authority,together determine the efficiency and fairness is inherent philosophy that the configuration ofthe electricity regulatory authority system should follow. Therefore, efficiency and fairness isthe internal basis to examine the substantive rationality of the legal system. When a specificlegal rules on configuration of the electricity regulatory authority comes out, the better onpromoting fairness and efficiency of the value, the higher degree that the proper rule of lawwill reach.Diversification and specialized features of modern electricity regulatory functions make“what path should we choose to configurate the electricity regulatory functions as a morereasonable path” become a problem to the modern state, the Power Balance Theory inpolitical science, Principal-Agent Theory in economy, and Multiple Game CoordinationTheory provide theoretical basis to solve the problems. Based on the theories, a reasonableelectricity regulatory authority configuration path is: power should be decentralized andconfigurated to make checks and balances, but the separation of powers should be limited to areasonable extent, and to establish mechanisms for cooperation and communication betweenregulatory bodies; the overall objective of the electricity regulatory system should be clearand reasonable resolved to the various regulatory agencies, and build incentives to coordinatethe various regulatory agencies willing to intention balanced incentives. Thus, in theconfiguration of the electricity regulatory authority path selection, the better to grasp the scaleof the separation of powers and the communication and coordination, the higher the electricityregulatory authority configuration legitimate degrees will be.The third chapter studies the performance and lessons which the advanced relatedextraterritorial legislative practice of other countries have provided. The advanced relatedextraterritorial legislative practice of other countries have provided performance and lessonsthat we can learn for the backward electricity regulatory authority to establish a nationalsystem: the electricity regulatory authority’s value goal should be fair and efficient. Toconfigurate the fair and efficiency value, we shulid make them both unite and conflict andmatches each other, the statutory legality of the electricity regulatory configuration is animportant foundation to effectively achieve regulatory objectives and to avoid abuse of powerfor regulatory agencies; adopting an independent regulatory model, real separation ofadministrative supervision, configurating power between policy departments and professionalelectricity regulatory agencies; decentralized configuration functions between electricity regulatory agencies and professional comprehensive regulatory agencies, and establisheffective coordination and communication between the two mechanisms; under the premise ofrespecting the economic foundation and legal context of the specific circumstances of thenational power industry, configurating the power between the professional power regulatorsand anti-monopoly law enforcement agencies, the role of anti-monopoly law enforcementagencies should continues to improve with the gradually maturity of the market competitionmechanism of the power sector. Backward states’ performance of configuration on electricityregulatory system may have a higher degree while the higher level of these experiences andlessons they learned.Thus, as the major premise of the argument, the contents of the first there chaptersprovide a theoretical standard on “How to configure the electricity regulatory authorityreasonable and even better”. A reasonable and better configuration on regulatory powersshould be:1, with the features that the legal characteristics of the government regulatorypowers decided and the construction of the government regulation system should have;2,meeting all four basic conditions for legitimacy, and, respectively, the higher level of thesefour conditions that meets, the higher degree of respect it has;3, putting efficiency andfairness as the value target, the higher degree of realization on promoting these values, thehigher degree of its legitimacy;4, separating the powers to make checks and balances,establishing communication and coordination mechanisms, the higher degree of theseparation of powers and communication coordination, the higher degree of its legitimacy;while the more experiences and lessons one learned in practice from advanced countries, thehigher degree of backward legitimate national electricity regulatory powers configurationwould be.As the minor premise of the whole argument, the fouth chapter study the main drawbackof the real existence of China’s electricity regulatory authority and then to provide the factualbasis for the “why dose China’s electricity regulatory power configuration need to beoptimized” question. On the one hand, although comparing with traditional western marketeconomies, the failure of the power industry in China has its own characteristics, the existenceof market failure of China’s configuration on power industry provides a justification on thebasis of objective conditions; on the other hand, many configurations with Chinese“government failure” phenomenon exist in the real state of China’s electricity regulatorypowers, on meeting the other three basic conditions for the degree of legitimacy measure, China’s current configuration of the legitimate power of the regulatory powers is not high, andneeds to be optimized. Current Chinese legislation concerning the content and value ofelectricity regulation has many defects, on facilitating a fair degree of efficiency and value tomeasure, China’s current power configuration of legitimate regulatory power is not high.Although the pattern of China’s electrical regulatory power configuration has been through anumber of evolutions, there are still many defects exist in the specific configuration of thepattern. The new national energy board can still not walk out of the plight of the former StateElectricity Regulatory Commission’s invalid regulation. On the degree of achieving theseparation of powers, coordination and communication level, and experiences on learningadvanced countries’ configuration on electric regulatory power, China’s current legitimatedegree is still not high, needs to be optimized.As the conclusions of this text, Chapter five presents specific programs to optimizeChina’s power configuration of regulatory powers to address the “how should we optimizeChina ’s electricity regulatory power configuration” problem, and ultimately provides ananswer to get out of China’s Electricity Regulatory invalid predicament practical problems. Tooptimize the configuration of Chinese electric power supervisory powers, the matching degreeregards various influence factors of electricity regulatory power allocation should be met andimproved. In particular, The optimization of the legal substance of the China’s electricityregulatory power configuration including the concept of optimizing its internal and externalsystems in two ways. The program of the optimizing the inherent concept on configuration onChina’s electricity regulatory power are:(1) while building the configuration system ofelectricity regulatory authority, respect and reflect the government ’s regulatory powers on thelegal characteristics;(2) when establishing the configuration system of electricity regulatoryauthority, reflect the full national characteristics of the power industry market failure, through“take safeguarding the public interest as the purpose of configuring regulatory powers, toensure the effectiveness of resource allocation and monitoring their effectiveness of theelectricity regulatory authority, and to reduce the costs of electricity regulation” to correctedexistence of “government failure” phenomenon in regulatory power;(3) take fair and efficientas the value targets as the configuration of regulatory powers, improve the legislativerepresentation of the value of efficiency and fair, and design rules on processing the conflictbetween efficiency and fair. the program of optimizing China’s power system on theconfiguration of the regulatory powers are:(1)in the newly enacted “Energy Law” and the revised “Electricity Law”, configurating the electricity regulatory authority, to achieve thelegal configuration on statutory regulatory powers.(2) establish energy ministry according tothe energy regulatory mode and independent regulatory mode, and set up internal independentenergy regulatory commission; the former one acts as the electricity regulatory policydepartment, the latter acts as the supervision department, which is responsible for theeconomic regulatory functions, including electric power industry market access rights andpricing power;(3) let the environment, security and other comprehensive regulatory agenciesassume the entire social power industry regulatory functions. Allocate the non-nuclear powerindustry production safety regulatory functions to the general’s comprehensive safetyregulatory agencies; establishing comprehensive nuclear safety regulatory agencies toundertake safety regulatory functions of the production of nuclear; clear attribution ofelectricity USO regulatory functions;(4) endow the energy department coordinating functions,establishing effective mechanisms of coordination and communication between these variousregulatory bodies;(5) take the dominant-balance way to configure powers between theenergy Regulatory Commission and the antitrust enforcement agencies, the energy RegulatoryCommission has jurisdiction on both power industry ’s monopolistic behavior ex ante and expost regulatory affairs; anti-monopoly law enforcement agencies enjoys the right toreconsideration on the running of the energy Regulatory Commission ’s after regulatorypowers, it has the right to revoke energy Regulatory Commission ’s regulatory decisions andto make new decisions made by the new law.Adopting the comprehensive system above, making the optimized plan for the specificimplementation of electricity regulatory power allocation and the legal form and essence ofoptimization come true, is the necessary term to let China out of the electricity regulatory voidpredicament, and to realize the effective regulation of the power industry. |
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