| Encompassing the main clue of Public Private Partnerships(PPP)’ challenges to the traditional administrative law and the active response of guarantee administrative law,this thesis have conducted pioneering research on basic categories,theoretic and reality-based foundation,subjects,acts and guarantee of PPP.The purpose of the research on legal issues of PPP is to answer the following questions:What is PPP?Why should it be carried out?What’s the content of it?How to regulate it from the rule of law?This article is divided into five chapters,with a total of about 370 thousands words.As a hot joint topic emerging in both the countries of Civil Law System and those of Anglo-American Law System,PPP should absorb the ideas of the privatization and governance,and have special specific meanings and four characteristics.Although there have many in common,there differs significantly in such aspects as subject’s status,behavior,liability and legal litigation.After examining the relevant useful experiences in some countries and based on the practices of our country,PPP’s mode can be divided into four basic ones,which include privatization-types,publication-types and governance-types;formalized types and non-formalized types;contract types and non-contract types;organization types and non-organization types.By studying the applicable scope of PPP abroad,four universal laws can be formulated as follows:the applicable scope of PPP is closely related to the country’s constitution and laws;it is intricately linked to the country’s degree of policy options;it is closely related to division of the country’s public administration and the level of public tasks;it has the expanding trend with the development of the times.As for the specific fields of application,PPP can be completely applicable in benefits administration,while be partly applicable in intervene administration.Nowadays,PPP has been able to booming,not only because of the globalization which is promoting the confrontation of the public and private to the cooperation of them,because of the impetus of sweeping New Public Management,but also because of the factors of the promotion of economie and Social transformation Collaborative Governance Theory,Risk Society Theory and such theories as Public Goods Theory,Public Choice Theory and Principal-Agent Theory lay the basis of Public Management,Sociology and Economics for the PPP.As Guaranteeing State Theory provides theoretical support for PPP’s body,behavior,responsibility and other system,it can lay a solid jurisprudence foundation for the development of PPP.PPP are not only compatible with such theories as National Reservation Theory,but also meets the basic requirements of the rule of law and has the democratic legitimacy and the foundation of basic human rights,so they have the solid constitutional basis.And the spirit or concept of cooperation,the National Reservation Principle and the theory of organizational diversity and the diversification of administrative acts also lay the solid foundation of administrative law for PPP.Since PPP’s subjects refer to public and private subjects that participate in public-private partnerships and the derived subjects generated by cooperation,they are characteristic of the diversity of subject form,the compound of subject role,the cooperation of subject goal and the breakthrough of organization law.PPP’s subjects can be divided into native type ones,which include public parties,private sectors,consumers of public law,and secondary type ones,which include trustees of public power,franchisees,government outsourcing contractors,social co-regulation subjects and PPP companies.Because secondary type subjects are private subjects while their goal is to achieve the tasks of public law,they have capacity for basic rights which differ from private organs,with its criteria being Public Tasks Theory.PPP’s subjects’ rising not only challenge Administrative Subject Theory and the boundaries,focuses,purposes and means of Administrative Organization Law,but also promote the_generation of New Administrative Organization Law.For these,adjustment range of Organization Law should be extended,theoretical center should be adjusted to Holders of Public Tasks and New Administrative Organization Law should be reconstructed with its purposes and means changing.In order to achieve the public tasks,the public and private parties exercise PPP’s acts which mean all the formal and informal behaviors that the public and private parties carry out equally and they have such legal characteristics as equality of subjects,public welfare of purpose,diversity of ways and cooperation in essence.While in the realm of PPP,the public parties have the freedom of choosing act forms between administrative action or administrative contract,between the form of public law,private law or administrative-private law,between formalized administrative acts or non-formalized administrative acts,it should conform to the following three conditions,i.e.the laws and regulations not requiring or even permitting,the due purpose of administrative discretion and the limited scope of administrative tasks.There are many crossroads between PPP’s acts and non-formalized administrative acts which have such features as discretionary space,transitional phase,weakening power and practical use and non-lawful content.PPP’s acts can be divided into three special types-privatization-types,publication-types and governance-types.The ar:ising of PPP’s acts not only challenge seriously such aspects as the theoretical system of traditional administrative behaviors,the effectiveness theory of administrative actions,the legal nature of administrative behavior and so on,but also center on the response of administrative law and has important construction functions to the Cooperative Administrative Law.Embodying the Guaranteeing State Theory,State Responsibility Theory has important theoretical implications for PPP.Not only public and private parties should exercise allocation of responsibilities in PPP,but also State Responsibility should be typed into such responsibilities as implementation responsibility,guarantee responsibility and receiving and carrying responsibility.Although the country does not assume implementation responsibility,it should have to assume Guarantor’s Responsibility,which is crucial to the PPP.As a new legislative,the guarantee administrative norms have important functions of constraints to PPP,for the functions of public law and private law is complemented by each other,the proportion of Private Administrative Law is increased,and Soft Law together with Hard Law is combined to be carried out.As the reification of state guarantor responsibility,guarantee administration is displayed in regulating PPP as follows---the relatively independent third-party professional regulatory agencies should be developed instead of the public sector;the regulation system that comprises co-regulation to the core and high-power controls,should be constructed;and regulatory procedure should be reflected the private,flexibility and co-operative trend.Based on guarantee remedies,PPP’s litigation should be reconstructed,that is,all-round relief to PPP should be achieved according to Three Legal Relation Theory,non-formalized type PPP should be subjected guarantee remedies,public law and private law remedies should be integrated in light of the nature,and new specific types of administrative litigation should be adopted.And state indemnify in PPP is also characteristic of follows:the concepts of the State Guarantor Responsibility should be implemented;the responsibility principle should be traced into public power principle;the ways of responsibility should be exercised allocation of responsibilities;and two relations should be handled as to exercising state indemnify power. |
