Research On Legislative Problems Of Project Financing Of Tot For Public Utilities In China

Public utilities are facilities to provide service for people's production and life. Within a long period of time after the establishment of our country, the public utilities were predominantly invested and monopolized by the government, which induced the situation of unitary investment subject, short of capital, indistinction between the functions of the government and those of enterprises, weak competitiveness, and low degree of management autonomy in our public utilities. In the mid 1990s, we started to have an investment system reform to the public utilities to run the projects on the commercial principles, and to adopt project financing such as BOT, TOT, PFI, and ABS,privatization and operation contracting. We introduced the private sector to invest, build and operate the public utilities to realize the diversity of investment subject and ease the burden on government finances. Meanwhile, the reform introduced the advanced operation techniques and management concept to improve the performance of maintenance and operation. Then, TOT, a kind of project financing adapted to the built public utilities, was started to be used in China for the advantages of introducing private capital, liquidizing the existing assets, and decreasing the governments'risks in the operation.Firstly, the author describes the concept, significance and application scope of TOT. TOT is a kind of project financing applied to the built operational public utilities, which can be divided into three phases, namely"transfer","operate"and"transfer". The author makes a comparison to TOT with the similar"privatization","BOT"and"operation contracting"to explain the characteristics of TOT from the aspects of nature of rights, government supervision and administration, form of contract, financing and risks.Secondly, the author makes a research on the current legislative situation of TOT both at home and abroad on the mode and scope of legislation. At present, there is no specific TOT law in foreign countries and areas. TOT usually applies to"Law on Concession"or several relevant current laws and regulations. The domestic TOT related laws and regulations are mainly administrative rules enacted by various ministries and commissions and local rules enacted by the local governments on concession. The legislative level is low and the coverage incomplete. TOT for public utilities is a kind of project covering several legal relations like state-owned assets transfer, concession and project financing. Through analysis, the author concludes four distinguished problems in the practice of TOT which are lack of governing law for transfer procedure, insufficiency of concession supervision and administration system during the period of"operate", imperfect public utility charge collection system and limited government support.Finally, the author puts forward the suggestions on legislation to enact an administrative regulation named"Administration Regulations of Marketization for Public Utility Projects"by the State Council. And then, the author provides the solutions to the above-said four problems of TOT in practice respectively.