Highway Operating Right Of Legal Analysis

In the hope of providing reference for the concrete practice in the project of highway management right, this paper attempts to propose countermeasures and suggestions with practical situation taken into consideration on the basis of the theoretical exploration of the law boundary of highway management right, the analysis of the pledge and the legal transfer of highway management right and the privileged permission for highway BOT from a legal perspective, and the rational reflection and objective analysis of the present situation of China's toll highway.As for the law boundary of the highway management right, the author of this paper argues that highway management right is a privileged usufruct right which refers to the right to possess, use and benefit from the infrastructure built specially for highway according to the special permission issued by relevant administrative departments and legal regulations. The management right that the highway management investor possesses should include not only the right to benefit from the project but also the power to possess and to use in a certain period, and the other rights to manage various concrete businesses in carrying out the above mentioned rights.By comparison and analysis, the author of this paper holds that the highway management right is one of 'other property rights to providing pledge and mortgage by law and administrative regulations' according to Real Property Law. Due to the drawback of legislation, there is no obvious evidence of the practical operation on the pledge of highway management right, and its function of finance guarantee can not be developed well. Therefore relevant legislation is suggested to be perfected.Up till now, no contract text in uniform has ever been made on the transfer of Chinese highway management right. The transferring act and the procedure of highway management right needs regulating by law. To protect the benefit of state property and to avoid any loss of state-owned property in the course of transferring highway management right, the transfer must be carried out according to law and legal procedure. In transferring the highway management right, the relevant units should have the state-owned property evaluated and get authority on the transfer of highway management right. In the course of highway management right, government is participant, maker, carrier and supervisor of the policies and regulations, having equal position in civil law with investors, complying general regulations on civil law, and providing effective protection for the benefit toll highway investors.This paper emphasizes to analyze the main applications of privileged permission for highway BOT, and legal attributes and risk of BOT agreement. The author of this paper suggests that administrative permission should be separated from the detailed regulations on the administrative power of government, and as to the practical issues agreed by bilateral sides or the ones which can be adjusted by market and needs regulating by government, the provisions in BOT agreement can be referred to.To prevent any loss of state-owned property or to avoid any damage of it, the author of this paper holds that the legislation of highway management right needs perfecting, the practical operation of the pledge of highway management right and the transferring procedure of it need regulating, the transferring work of highway management right should be improved effectively, and the financing function of which should be developed rightly.From now on, highway finance should not be collected through the loan from bank but through the issue of public debt so as to make a change of the omission of government in China's highway construction and the overdependence on bank loan and the aggravated financing risk. Coordination should be made not only on the duties and rights among national roads, provincial roads and county roads, but also between highway construction scale and the financing outlay ability of government. Furthermore, attention should be paid to the relationship between the highway investment system and the distribution rate of central and local finance and tax. Toll of highway should be decreased, consequently the economic cost of the society can be brought down. With the above mentioned efforts, national economy, society and highway transportation can be developed harmoniously.