Study On The Status Of Administrative Subject Of Public Enterprises In China

In the beginning of 1980 s,with the transformation of government functions and public administration reform in various countries,the administrative tasks showed a sharp increase.At the same time,with the progress of social life and the change of public perception,more and more public products and universal services gradually become the necessities of daily life of people.Under the concept of "limited government",the government obviously can not meet all of the demands of people,so a large number of non-governmental organizations gradually take part of the function of public management,showing the phenomenon of "socialization of administrative power" and "diversification of administrative subject".As one of the social organizations,the public enterprise plays an important role in production and daily life,but the scholars of administrative law in our country pay little attention on it.As the provider of basic public goods and universal services,the public enterprise's behavior involves the public interest,at the same time,the public enterprise also actively participates in the social public management activities,it is necessary to study the status and function of public enterprises in administrative law.This article focuses on the status of public enterprise in administrative law.First of all,analyzing the origin,definition and characteristics of the public enterprises and administrative subjects,it comes to the conclusion that the traditional theory of administrative subjects can not adapt to the status of public enterprises,which extensively participat in social managements.After the concept of administrative subject was introduced into our country,it is generally understood as the administrative organs and organizations authorized by laws and regulations,which are defendants in administrative litigation.With the development of society and the needs of the public,the government has been unable to take all the responsibilities of social management.The social organizations have begun to share some responsibilities of the goernment,and public administration has been developed.Public enterprises acting as economic entity that provide public products and universalservices to the public have a certain monopoly.Public enterprises that have public welfare,public nature and certain social management functions,are different from the general market subjects.However,under the traditional state administrative model,the public enterprises are always treated as the object of administrative law.With the marketization and socialization,the traditional mode of state administration has gradually been changed;the government is no longer the sole monopoly of administrative power.The traditional theory of administrative subject should also be extended to public administration.Public institutions and all other social forces involved in social management should be looked as the administrative subjects.In order to meet the needs of the socialization of administrative power and the trend of diversification of administrative subjects,the public enterprises that provide a large number of public products and universal services should be the administrative subjects.Secondly,through the study of the history,legal nature of public enterprises and socialization of administrative power,combined with the reality of the administrative law enforcement and the management of public enterprises in China,the possibility and necessity of public enterprises to be the administrative subjects are analyzed.The public enterprise has the nature of both public and private legal person.In the history of public enterprises,they have belonged to private legal person in some time,and belonged to public legal person in other time,so their legal nature is not static.Public enterprises in various countries are now responsible for providing public goods and universal services to the public,with the goal of achieving the public interest and meeting public needs,and are characterized by both public and private legal persons.German administrative law classifies the public sector as "de facto or legally independent economic organization attached to the government"."In Japan,power companies and other public enterprises,unlike ordinary enterprises,are classified as special legal persons,and already have the legal status of administrative subjects.The socialization of administrative power makes public enterprises become administrative subjects.More and more social organizations participating in public management,the public enterprises to provide general public goods and services to residents,families have public attributes,so the public enterprises are the administrative subjects.The public enterprises have been looked asthe administrative subjects in judicial practices.Western countries have developed various ways to judge the nature of public enterprise behaviors such as functional essence,government behavior,survival and care obligation,public service theory,etc.Investor who is private or public organ has no effect on the court's decision of the nature of conduct.For public enterprises after privatization,the judgments of the nature are based on the specific acts of public enterprises.In Germany,the United Kingdom,the United States,France and other countries,the courts found that the most important basis for judging the nature of an institution is the nature and the consequences of their conducts,if an institution has a "public function" or its conducts have a public effect,then in principle it should have a similar legal status with the government agencies.The privatization of public enterprises has not changed the public nature of public products and universal services provided by public enterprises.The public enterprises in China need to be the administrative subjects.Based on the special function of public enterprises in maintaining public order and promoting economic and social development,under the realistic situation of limited local police resources and difficulty in administrative enforcement to meet the daily operation of public enterprises,public enterprises urgently need to be the administrative subject and certain public administration power in order to maintain their normal operation and daily management.Thirdly,with the consideration of the social function of public enterpris,the acquisition,content and operation of administrative power are studied.Administrative power is the core content of public enterprises as the administrative subject.According to Rousseau's Theory of Social Contract,the power held by the state or government is nothing more than the power transfered by the people on the basis of the contract,so is the administrative power acquired by the public enterprises.The acquisition of certain administrative power by public enterprises conforms to the requirement of scientific distribution of public power,and the need of administrative democracy in our country,which can better safeguard the public interest.In particular,in the limitation of local police resources,administrative law enforcement difficult to meet the daily operation of public enterprises,public enterprises urgently need some public administration power,in order to maintain their normal operationand daily management.Through the authorization of laws and regulations,government entrustment and administrative contracts and other ways,public enterprises in our country have the administrative power such as licensing,punishmentand inspection.For example,the permission of the conducts in a public facility protection area,the inspection of the public utility and the user's luggage or person,the suppression of illegal break-in,and the punishment of some illegal acts.In fact,in order to maintain the normal operation of various facilities and equipment,and to avoid destruction by the users,many public enterprises have formed their own law enforcement teams.There are enterprises to obtain the authorization of local legislation,acting in their own name,such as subway companies in Shanghai,Guangzhou and other cities;or in the name of the administrative organs,such as subway companies in Shenzhen,Hefei and other placesFourthly,according to the operation of public enterprises in our country,the actual predicament is analyzed and some suggestions are provided.Because the absence of the unified legislation on public enterprises in our country,the nature,status,duties and supervision of public enterprises are not clearly defined,the regulations on the administrative power of public enterprises are not clear.The legislations and practices in different industries and regions are differences,which produced many problems.On one hand,public enterprises with limited authorization,lack of coercive power,inadequate deterrent power of punishment,and unclear approval process,are difficult to meet the needs of daily management,so public enterprises have to rely on the support of administrative agencies in their daily management.The effect of the implementation of the administrative power of public enterprises needs to be improved.Therefore,in accordance with the basic principles of administrative law,it is necessary to make the principal status and power content of public enterprises clear through legislation,so the administrative power of public enterprises is lawful and reasonable,moderately necessary,with certainty and predictability,and the exercise of procedures are due and just.At the same time,public enterprises need to strengthen the construction of self-discipline system,in order to maintain their public image and avoid undue interference from outside.Finally,the last part is fucosed on the supervision system of the public enterprises.In order to "Put power in a cage",the supervision system is very important.Due to the lack of supervision system,it is difficult for the outside world to intervene in the business process of public enterprises,so it is impossible to supervise the daily behavior of public enterprises for the regulations respecting the independent operation of enterprises and protecting trade secrets.After recognizing the status of public enterprises in the administrative law and obtaining the administrative power,it is necessary to strength the supervision system by comprehensively regulating and reasonably restricting the exercise of the executive power,so as to avoid their abuse of their power to infringe the public interests.It's not fair for the parties who are infringed by public enterprises that they can only safeguard their interests through civil means such as contractual disputes,tort liability and so on.We should supervise the public administration of public enterprises,and the provision of public products and universal services like administrative acts.The public enterprises should be treated as the administrative subjects,and the infringement to the relevant parties shall be included in the scope of state compensation.The parties can protect their rights through administrative reconsideration,administrative litigation and other ways,so as to reduce the burden of proof,the cost of defending rights,and better safeguard the interests of the public.