| Public utilities have the function of promoting social welfare,which is also a kind of public property from the perspective of administrative law.Therefo Public utilities have the function of promoting social welfare,which is also a kind of public property from the perspective of administrative law.Therefore,it is of significance to analyze the phenomenon of public utilities franchise under the framework of public property theory.From the perspective of administrative law,public property is provided for the use of the public.The difference of the standard purpose between administrative law and civil law leads to the great difference in the scope of things between public property law and civil law.The normative purpose of civil law is to ensure the order of property transactions between equal subjects,that is,only things with transaction function and economic value can become objects in civil law.In the administrative law,public property is the material basis for the administrative subject to achieve the administrative purpose.Therefore,the objects that are directly or indirectly used by the public or able to promote public welfare can be included in the norms of administrative law for adjustment.Specifically speaking,the object that helps the administrative organ to promote the public interest and be regulated by the public law is the public property.The civil law system and the Anglo-American law system have formed different public property theories according to their respective legal traditions.The countries with Anglo-American law system have gradually formed the public trust theory and the separate legislation and property law related to the use of natural resources and public land through judicial precedent.The public property theory of countries with civil law is based on the dual distinction between public law and private law,emphasizing that public property bears the public purpose that private property does not have,and constructing the public property theory with the public property management of administrative organs as the core.In the civil law system,there is a succession relationship among the public property theories of France,Germany and Japan.The term public property first appeared in France,which divides the property of administrative subject into public property and private property.The former is regulated by public law,and the latter by private law.Although there have been disputes on the distinction between public property and private property and the nature of the ownership of public property,this concept has been adopted by legislation and a relatively mature legal system of public property has been established.In Otto Meyer’s time,French public property theory was introduced into Germany.As a result,Germany has formed a dual regulation mode,which is based on private ownership in civil law and restricted in the scope of public use of public property.The legal system of public property in Japan has absorbed the theory of public ownership in French law and the theory of private ownership in German law,and formed the theory of management right of public property with characteristics.In addition to the theory of management right of public property,the purpose of public property is for the public to use.How the public use public property and what rights the public enjoy among them shall be regarded as the study emphases.There is no unified legislation on public utilities in China,and there is no dispute on the concept connotation in academic circles.However,from the perspective of legislation,there are many overlaps between the extension and other similar concepts.Public utilities in a broad sense include education,social security and other fields,which are not suitable for public-private cooperation in the form of franchise according to their nature.Therefore,public utilities under the concept of franchise have the characteristics of non-exclusive,non-competitive and network in economic attributes.From the perspective of public property,public utilities are closely related to public life and are profitable.From the perspective of profitability,its nature is more similar to that of Japanese public enterprises.The franchise of public utilities is to realize the transfer of management and operation authority by the way of franchise.Whether in Japan or in China,there are disputes on the meaning of franchise in terms of authorization and ban lifting.Whether the franchise has the nature of authorization depends on whether it is applicable to specific fields.The field of public utilities is closely related to the production and life of the public,and the state has the ultimate guarantee responsibility for it,while public property is directly used by the administrative organ for the purpose of improving public welfare,which is closely related to the public interest.Even if the administrative organ transfers the management and operation power of the public property to the private in the way of concession,this practice does not mean that the nature of the public property has changed.When the private cannot fulfill the supply responsibility of public products,the administrative organ shall bear the ultimate guarantee responsibility.Therefore,the monopoly of the supply of public property can be regarded as a right or an obligation.In conclusion,the author believes that in the public utilities franchise,the franchise is a kind of authorization,and the basis of authorization is not the monopoly operation of public utilities,but the responsibility of providing survival care for the public.Franchising is a form of public utilities in the process of privatization,which essentially reflects a kind of public-private partnership(PPP),which belongs to task privatization or is called substantive privatization.The state withdraws from the performance of the task and completely transfers it to the market.The State performs the responsibility of guarantee payment by means of regulation and intervention.The privatization of public utilities by way of franchise can achieve a balance between monopoly and competition.Compared with other public-private cooperation modes,the public-private nature of franchise is highly mixed,and it is difficult to clearly distinguish its legal attributes.As a consequence,the supply of public goods is transferred from direct state payment to private supply,and the role of state is transferred from payment provider to supervisor or guarantor.Whereas,in the process of administration,guarantee administration also leads to many problems,such as the serious conflict of interest among multiple subjects,the complexity of multilateral legal relations,and the virtualization of relations between the state and the public.To solve these problems,it is required to change the traditional research paradigm of power control and control leading to the research paradigm of regulation and balance of interests.As a partner,the legal status of franchisees and administrative organs has changed.The private subject is no longer the object of the administrative organs and the two sides are the cooperative partnership with different roles to complete public tasks.At this time,as a franchisee,the social organization becomes the main body of public facilities construction and operation,as well as the main body and responsibility bearer of public tasks that provide public goods and services through public facilities,which independently performs public tasks,has independent profit demands and bears risks independently.At the same time,considering the administrative agreement and the advantages in technology,operation and management,and capital financing,it has become a cooperator with the administrative organs to provide public products.Franchise is the core concept of public utilities franchise,and only through the transformation of “rights” can franchising become the franchise interests of nongovernmental organizations under the state of legal protection.There are many controversies on the right form of franchise in theory,but no matter from the perspective of the theory of real right or quasi real right,it is a systematic operation under the conceptual thinking.In the case of public utility franchising,public and private legal norms are not mutually exclusive but mutually connected and coexisting.After the franchise is granted to the franchisee,it becomes a part of the business freedom.Although the freedom of business has not been clearly stated in the constitution,the recognition and protection of the status of market subject,its autonomy and freedom of business should have been included in the socialist market economy system.The double functions of the basic right include the right of defense and the beneficial right.Whereas,because its limitation belongs to the restrictions on the freedom of choosing competent requirement,the franchisee does not have the right of active contracting.In fact,when competitors believe that the different treatment from the administrative organs makes them difficult to be in the same competitive positions as other candidates in the process of selecting franchisees,they can remove obstacles through legal channels without considering the fairness of the final result.Therefore,the right of claim for concluding an agreement can be deduced from the principle of equality,but at the same time,the corresponding obligation of the state is a negative obligation,that is,it does not infringe the possibility of equal access to conclude an agreement,and does not have a positive guarantee that every applicant can obtain the franchise right,so it should belong to the right of defense claim in the basic right.The legal relationship between the public and private sectors through the franchise process is finally expressed and determined in the form of franchise agreement.Franchising agreement belongs to the dual service contract under the subordination contract,which is easier for the administrative organ to use its actual advantages to conclude an unreasonable content agreement with the counterpart that can increase the burden of the counterpart and reduce its own obligations.In terms of the agreement on the obligation to pay,both parties should be bound by the “principle of appropriate payment”,and the content of the franchise agreement is not equipped with comprehensiveness.The content agreed in the franchise agreement may not cover all franchise matters,which is formed by the guidance of legal norms.Both the norms of administrative law and civil law are the basis for judging their effectiveness.In terms of the relationship between franchise and franchise agreement,the two-stage theory in legislation and judicial practice are adopted in China.However,with the issuance of judicial interpretation by the Supreme People’s Court,the settlement of all franchise agreements will be brought into the orbit of administrative litigation,so as to avoid the delay of the right relief of the counterpart due to the disputes caused by unclear judgment standards of the public and private attributes of the nature of the act.After the dispute of franchise agreement has been brought into the administrative litigation,a specific dispute whether the subject matter and the terms of the agreement reflect the agreement and negotiation,or reflect the administration and publicity shall be discussed to determine the applicable norms and review principles of specific laws.At present,there are some problems in the franchise of public utilities in China,such as the lack of unified high-efficiency level of legislative norms,the conflict between existing norms,the lack of cohesion,the more framework norms in content,the lack of operability,the unclear subject qualification,the way of conclusion,and the rights and obligations of both parties in the franchise agreement.The freedom of administrative organ to choose behavior is also considered as authorized by law,which is restricted by the principles of democracy and rule of law,efficiency,legal reservation,equality and balance.Combined with the economic and consensual characteristics of public utilities franchise,the question what kind of legal principles can provide restrictions for the implementation of legislation and regulation of public utilities franchise shall be investigated.First of all,it should be made clear that the legal system construction of the franchise of public utilities is subject to the adjustment of the “administrative license law”,and should be restricted before there is no special legislation on the franchise of special public utilities.Secondly,the legal system should be improved through the establishment of a unified public utilities franchise legislation,the improvement of the relevant supporting normative system,and the clarification of the main responsible departments,so as to improve the standard density of legal norms in government supervision,selection of competitors,situation change,public rights protection and other major provisions.On the other hand,the phenomenon that the legal provisions are too broad to provide the administrative organs with accurate guidance can be prevented.In the case of clear behavior boundaries,the administrative organ can form an agreement with the franchisee according to the legal guidance,without violating the law.When the behavior boundary is clear,the administrative organ can form an agreement with the franchisee according to the legal guidance without violating the law.From the perspective of administrative law,public property is provided for the use of the public.The difference of the standard purpose between administrative law and civil law leads to the great difference in the scope of things between public property law and civil law.The normative purpose of civil law is to ensure the order of property transactions between equal subjects,that is,only things with transaction function and economic value can become objects in civil law.In the administrative law,public property is the material basis for the administrative subject to achieve the administrative purpose.Therefore,the objects that are directly or indirectly used by the public or able to promote public welfare can be included in the norms of administrative law for adjustment.Specifically speaking,the object that helps the administrative organ to promote the public interest and be regulated by the public law is the public property.The civil law system and the Anglo-American law system have formed different public property theories according to their respective legal traditions.The countries with Anglo-American law system have gradually formed the public trust theory and the separate legislation and property law related to the use of natural resources and public land through judicial precedent.The public property theory of countries with civil law is based on the dual distinction between public law and private law,emphasizing that public property bears the public purpose that private property does not have,and constructing the public property theory with the public property management of administrative organs as the core.In the civil law system,there is a succession relationship among the public property theories of France,Germany and Japan.The term public property first appeared in France,which divides the property of administrative subject into public property and private property.The former is regulated by public law,and the latter by private law.Although there have been disputes on the distinction between public property and private property and the nature of the ownership of public property,this concept has been adopted by legislation and a relatively mature legal system of public property has been established.In Otto Meyer’s time,French public property theory was introduced into Germany.As a result,Germany has formed a dual regulation mode,which is based on private ownership in civil law and restricted in the scope of public use of public property.The legal system of public property in Japan has absorbed the theory of public ownership in French law and the theory of private ownership in German law,and formed the theory of management right of public property with characteristics.In addition to the theory of management right of public property,the purpose of public property is for the public to use.How the public use public property and what rights the public enjoy among them shall be regarded as the study emphases.There is no unified legislation on public utilities in China,and there is no dispute on the concept connotation in academic circles.However,from the perspective of legislation,there are many overlaps between the extension and other similar concepts.Public utilities in a broad sense include education,social security and other fields,which are not suitable for public-private cooperation in the form of franchise according to their nature.Therefore,public utilities under the concept of franchise have the characteristics of non-exclusive,non-competitive and network in economic attributes.From the perspective of public property,public utilities are closely related to public life and are profitable.From the perspective of profitability,its nature is more similar to that of Japanese public enterprises.The franchise of public utilities is to realize the transfer of management and operation authority by the way of franchise.Whether in Japan or in China,there are disputes on the meaning of franchise in terms of authorization and ban lifting.Whether the franchise has the nature of authorization depends on whether it is applicable to specific fields.The field of public utilities is closely related to the production and life of the public,and the state has the ultimate guarantee responsibility for it,while public property is directly used by the administrative organ for the purpose of improving public welfare,which is closely related to the public interest.Even if the administrative organ transfers the management and operation power of the public property to the private in the way of concession,this practice does not mean that the nature of the public property has changed.When the private cannot fulfill the supply responsibility of public products,the administrative organ shall bear the ultimate guarantee responsibility.Therefore,the monopoly of the supply of public property can be regarded as a right or an obligation.In conclusion,the author believes that in the public utilities franchise,the franchise is a kind of authorization,and the basis of authorization is not the monopoly operation of public utilities,but the responsibility of providing survival care for the public.Franchising is a form of public utilities in the process of privatization,which essentially reflects a kind of public-private partnership(PPP),which belongs to task privatization or is called substantive privatization.The state withdraws from the performance of the task and completely transfers it to the market.The State performs the responsibility of guarantee payment by means of regulation and intervention.The privatization of public utilities by way of franchise can achieve a balance between monopoly and competition.Compared with other public-private cooperation modes,the public-private nature of franchise is highly mixed,and it is difficult to clearly distinguish its legal attributes.As a consequence,the supply of public goods is transferred from direct state payment to private supply,and the role of state is transferred from payment provider to supervisor or guarantor.Whereas,in the process of administration,guarantee administration also leads to many problems,such as the serious conflict of interest among multiple subjects,the complexity of multilateral legal relations,and the virtualization of relations between the state and the public.The private subject is no longer the object of the administrative organs and the two sides are the cooperative partnership with different roles to complete public tasks.There are many controversies on the right form of franchise in theory,but no matter from the perspective of the theory of real right or quasi real right,it is a systematic operation under the conceptual thinking.In the case of public utility franchising,public and private legal norms are not mutually exclusive but mutually connected and coexisting.On account that the mixing of public and private attributes is a factual state of franchise,it is better to adopt a pragmatic and empirical way to break out of the public-private binary mode and analyze franchise by means of typed thinking than to come up with a fuzzy publicprivate hybrid concept.On the one hand,with the help of the openness and inclusiveness of the property rights system,the franchise rights can be incorporated into the property rights system,which is more conducive to the franchisor’s better completion of public tasks.On the other hand,it is not necessary to dispute whether a property right is a public right or a private right,whether it belongs to the ownership or other real right,but how to define the content of a right and what is the form of the relationship between the rights and obligations of both parties.In addition,all rights in the property right system are equal,which will not be protected more than private rights because its right has more public attributes.Instead,it should be determined according to the actual law or the content of rights agreed by both parties.At present,there are some problems in the franchise of public utilities in China,such as the lack of unified high-efficiency level of legislative norms,the conflict between existing norms,the lack of cohesion,the more framework norms in content,the lack of operability,the unclear subject qualification,the way of conclusion,and the rights and obligations of both parties in the franchise agreement.The freedom of administrative organ to choose behavior is also considered as authorized by law,which is restricted by the principles of democracy and rule of law,efficiency,legal reservation,equality and balance.Combined with the economic and consensual characteristics of public utilities franchise,the question what kind of legal principles can provide restrictions for the implementation of legislation and regulation of public utilities franchise shall be investigated.First of all,it should be made clear that the legal system construction of the franchise of public utilities is subject to the adjustment of the “administrative license law”,and should be restricted before there is no special legislation on the franchise of special public utilities.Secondly,the legal system should be improved through the establishment of a unified public utilities franchise legislation,the improvement of the relevant supporting normative system,and the clarification of the main responsible departments,so as to improve the standard density of legal norms in government supervision,selection of competitors,situation change,public rights protection and other major provisions.On the other hand,the phenomenon that the legal provisions are too broad to provide the administrative organs with accurate guidance can be prevented.In the case of clear behavior boundaries,the administrative organ can form an agreement with the franchisee according to the legal guidance,without violating the law.When the behavior boundary is clear,the administrative organ can form an agreement with the franchisee according to the legal guidance without violating the law. |
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