| This assay, in the angle of legal thinking, according to the stipulations of legal principle spirit and current laws and regulations, combining the basic-level governments' actual debt conditions, introduces current debt situation of Chinese basic-level governments, analyzes the reason, characteristics and types of debts, and points out the consequence of degenerated government's debt. It investigates further and analyzes the legal principal subjects of government's debt of basic-level governments, argues the civil liability of the basic-level government debts solved by law and the legal way and method to solve debt. At last, it puts forward the mentality of designing system of managing debt in accordance with the law. Actually, basic-level government's debt problem is a legal problem of civil law category, and should be dealt with according to the principle and norm of the civil law. But as there is specialty in subject nature, reason, and obligation execution compared with civil debt in general, it should be given special system and treatment.I. Current problems of debt of Chinese basic-level governmentsThe author thinks that the debt of basic-level government means the obligation of funds as debtor to creditor in accordance with agreement or rules and regulations during fulfilling the duty and carrying out higher authority' regulatory file.At present, there still not systematic statistics about the debt of governments of basic level (county, township, or town), but it is the fact without dispute that the areas of Middle China and West China, including the basic-level governments of some areas in East China are generally in debt. It is estimated by experts and scholars that the debt is about 800,000,000,000 RMB, while some even believe it is already over 1,000,000,000,000 BMB or even more. It is a common understanding of experts and scholars the basic-level governments are facing severe debt.The reason of forming basic-level government's debt is complicated. In macro respect, there are factors in economic system, political system, legal system, etc.; in micro respect, there are reasons of overstaffing in organizations in the basic unit, public construction, clearing up and rectifying the rural economic order, fulfilling indexes and tasks of higher authorities, banquet and entertainment of grass-roots cadres, government's haphazard investment, natural calamity and supervisory management.This assay classifies the reasons of basic-level governments' debt in order to distinguish responsibility, to deal with separately and to confirm subject of bearing of the debt. The basic-level governments' debt can be divided into different kinds of according to different standards, for instance: salary, project, policy, enterprise investment, entertainment, and other debts etc. It can be also divided, according to legal province of basic-level governments, into government executing general principles, fulfilling orders of higher authorities, handling jobs assigned by higher authorities, etc. There are also other kinds divided according to latency, creditor type, legality or illegality.In view of the current situation of basic-level government's debt, some scholars describe it as a time bomb, exploding at any time, causing government's debt crisis and financial crisis. The serious problems of basic-level government debt indicates, it is possiblefor the governments to lose its malignancy, reducing its social economic management function, directly influencing social stability, and further more, causing financial crisis. The problem to dissolve governments' debt has brought attention in Chinese legal circle. The author thinks legal administration is the only way to solve it. There are three keys: Firstly, how to divide the legal liability of clearing up debt in accordance with the law; Secondly, how to dissolve the basic-level government's debt in accordance with the law; Thirdly, how to prevent new debt of basic-level governments in accordance with the law.II. Legal administration to basic-level governments'debtCompared with general folk debt, basic-level government's debt, its subject is administrative and nonprofitable, and the behavior of the subject is often limited by government of higher level. At present, there are no legal provisions yet in China on whether the subject of the debt could go bankrupt. But debt must repay, and the specialty of basic-level government determines that the way of dealing with the debt of basic-level government is different to that for treating general civil debt. For instance, the government should discharge actively, the fund is mainly from the fiscal revenues, and the government of higher level should bear the corresponding liability for satisfaction, and etc.As to the liquidation and responsibility of basic-level government's debt, according to the constitution, proviso ion on government's duty of local organization law, proceeding from modern legal rights principle of reciprocal rights and obligations, using the principle of "Legal person deny" and civil agent regulation, the author thinks basic-level government's responsibility for bearing debt is: (1) The basic-level government bears the responsibility of liquidating the debt of the self-determined affairs within the scope of its official duty; (2) The basic-level government in debt for carrying out the decision or order of upper governments (or even the central government) should be taken as agent's behavior, and the debts should be taken as its higher government. But the basic-level government should shoulder the related liability for satisfaction in case it has mistake; (3) As to the debt arising from cross functions of governments of different levels, indeterminate affair rights or financial rights, or the debts formed under the working mechanism of "Affair right important, financial right less important", referring to the principle of "Legal person character denies", its higher government bears the responsibility of direct satisfaction.Because of at the status of basic-level government public legal person, there must be legal responsibility problems including civil affairs, administrative affairs, and criminal affairs during procedures of forming, developing, and liquidating. By strengthening investigating to administrative responsibility and criminal responsibility, the debt may be transformed or reduced.III. Legal way and method to solve basic-level government's debtBecause the basic-level government has bi-characteristics of public legal person and private legal person, there are different ways to solve debt problems according to law and regulations such as identifying debt types, acknowledging liabilities of governments of upper level and lower level, paying off debt actively according to law. The funds for refunding debt is from fiscal revenues, allocation from higher authorities (or central government), income from dealing with assets, other incomes, etc..In dealing with the debt of basic-level government, should stick to the principle of distinguishing the type, distinguishes responsibility, paying off debt actively, and solving... |
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