| In 1996, Chinese government firstly carried out experimental government procurement in Shanghai, and then promulgated the law--- Government Procurement Law of People’s Republic of China. In 2001, the total amount of government procurement reached 65,300,000,000; in 2002, the total amount was over 100,000,000,000; and in 2008, the total amount was increased to 599,060,000,000, up 28.5% over the same period of last year. In general, since the law was carried out, the government procurement has achieved great success, but at the same time, it also exposed many disadvantages which brought great risk to the government. As an important part of financial system, the government procurement relates to the successful expansion of various work. Therefore, it is quite necessary to strengthen the research of its risk and prevention, which can not be ignored. The risk is derived from ineffective supervision. In the over-ten-year development process, though very short, the illegal acts of government procurement never stop, which greatly affect the healthy and orderly government procurement. Due to the imperfect supervising system and relative legislation, lacking of comprehensive and effective supervision, it is much more difficult to control the immature government procurement with the influence of market economy. The urgent tasks are quickly perfecting the relative legislation of government procurement, strengthening the supervision and regulation, holding the development trend of government procurement, and solving all kinds of contradictories and conflicts to achieve a steady, quick and effective development.This dissertation puts the legislation of Chinese government procurement as an access, mainly analyzes the legal loophole of Chinese government procurement and its supervision and brings forward the relative solutions. The whole dissertation consists of five parts and the detailed contents and structures are as follows. Part one is an introduction. In this part, the author clarifies the research background, puts forward the questions, collects literature review, presents the development clues and states the research content and methods. The government procurement is of great significance to regulate the fiscal expenditure, protect the national economic development, and promote the country’s implemented macroscopic regulation. It is an important guarantee to maintain the whole market economy forward by intensifying the supervision and ensuring the proper process of government procurement.Part two is an analysis of the current situation of Chinese government procurement and its supervision.Firstly, the author gives an analysis from the perspective of the government procurement. Chinese government procurement began in 1996; in 1998, the Ministry of Finance was entitled to in charge of the government procurement; in 1999, the first Interim Measures on Government Procurement was carried out nationally; in 2001, Chinese government participated in the negotiation of Government Procurement Agreement (GPA); in 2002, Government Procurement Law of People’s Republic of China was promulgated; and in 2007, the application of Government Procurement Agreement (GPA) was signed. During those periods, Chinese government procurement has achieved rapid development, with more diverse procurement mode, clearer procurement principles, more perfect department system and more transparent procurement information. Until 2008, the goods amount of national government procurement was 255,920,000,000, which was up 29.7% over the same period of last year. Besides, the project amount of government procurement was 297,840,000,000, which was up 27.8% over the same period of last year, and the service amount of government procurement was 45,330,000,000, which was up 27% over the same period of last year. However, at the first beginning of government procurement, the total amount was only 3,100,000,000. Generally speaking, Chinese government procurement has developed rapidly since it was carried out. It plays an obvious promoting role on the development of national economy and the implementation of government macroscopic policies, but there are a lot of shortages and many aspects which need further research during the development process. Secondly, the author gives an analysis from the perspective of the government procurement supervision. The mainly government procurement supervision mechanisms are supervision mechanism from purchasing department, supervision mechanism from evaluation experts, supervision mechanism from suppliers, and supervision mechanism from the society. Each supervision subject carries on their supervision and management on the relevant issues within their own power and responsibility. The relative legislation mainly embodied in the state legislation and local legislation. The state legislation takes the Government Procurement Law as the center, and then promulgates a series of laws to form the rudiment of the government procurement law system, which includes Methods on Complaints of Government Procurement Supplier, Administrative Regulation on the Bulletin of Government Procurement News, Management Method for Investigating and Invitation of Bid in Government Procurement Goods and Services, Management Method for evaluation Experts of Government Procurement, and Administrative Regulation on the Surveillance Inspection of Concentrated Procurement Department and so on. Mainly combined with the local situation, the local legislation establishes some relevant policy advice, and in the dissertation, it mainly takes that of Shanghai, Qingdao and Shenzhen as examples.Part three is a comparative study of different government procurement systems. In this part, the author gives a detailed comparative description of Government Procurement Agreement of WTO, the Model Law of United Nations, the Public Purchase Order of European Union, and the government procurement systems of America, Japan and South Korea. By the comparison, some better advice can be learned to guide Chinese government procurement.1.the perfect legal supervision system. For instance, in America, it carried out Union Purchase Rationalization Bill, Max Klinger——Cohen Bill, the Weapon and Equipment-Procurement Law, Federal Administration and Property Law, and Union Purchase Regulations, which involved not only direct issue such as the flow, object, subject and mode, but also contained the training and supervision of purchasing personnel, civil procurement, and national defense procurement, forming a perfect legislation system from congress to each state; 2.emphasing the principal position of supervisor. Japanese government first established perfect query mechanism at home. In accordance with the provision, Government Censorship Office and Government Censorship Bureau are in charge of the full implementation of this query work. The supervision mechanism of American government procurement is stipulated in detail from the perspective of the arrangement of purchasing institution and the selection of purchasing personnel; 3.good remedy mechanism of government procurement. Government Procurement Agreement of WTO sets up dispute settlement system and perfect remedy mechanism due to each country’s dispute. The public procurement order of European Union, aiming at the remedy issues after disobeying the contract, promulgates Public Relief Order and Public Utilities Relief Order to guarantee the implementation of public utilities order. In America, in procurement remedy perspective, the public interest subrogation prosecute mechanism for contractors and raw deal prosecute mechanism for the third party are strictly censored.Part four mainly analyzes the loopholes of Chinese government procurement law based on the typical cases. The dissertation takes two cases which are case of Geli and case of medicine in Suzhou into vivid discussion, and gets the result that the main loopholes of Chinese government procurement supervision. They are as follows.1. There is transparency problem in the process of government procurement and it lacks more reasonable and effective measure of information openness.2. The power and responsibility of supervision subject are not clear and there is not a united behavioral principle.3. The legislation of special equipment and special material, and the supervision of special fields are blank. The end of this part is the reasons for the law loopholes. They are the lack of government procurement practice, the short of specialized talents and flimsy legal awareness of legislation.Part five is putting forward the remedy solution to the loopholes of Chinese government procurement supervision. It consists of five points.1. Establish and perfect the program of absorbing and training the professional purchasing and supervising talents.2. Perfect the current legislation of government procurement supervision through improving the awareness of legislation, establishing the current legislation model and set up and perfect all kinds of laws and regulations based on the law loopholes.3. Establish the controlling responsibility mechanism of the government procurement supervision subject. Make sure the effective implementation of the whole process through the system of accountability of and the professional mechanism with qualification of the government procurement supervision subject.4. Establish mechanism of performance appraisal of government procurement. The result of government procurement is the most embodiment of its efficiency. If a reasonable and fair appraisal mechanism is set up to give an objective judgment of government procurement, the development trend and goals of government procurement supervision will be much easier to grasp.5. Quicken the electronic pace of government procurement. The application of electronic information is not only useful to open the government procurement in time, but also of great influence on the efficiency of government procurement. Nowadays, China’s electronic technology has achieved some development, and it is an inevitable trend to strengthen the application of information technology on the government procurement in the government procurement supervision area.Government procurement is not only an important means of national macro-control on the development of the national economy,it also has a significant impact on the the development of the national economy.Strengthening and improving the monitoring of government procurement is an important guarantee for an orderly market mechanism. This article from the Perspective of legal norms,the guilding of preventing,the precondition of the public infrastructure system, and closely with the current outstanding problems in our government procurement, proposes appropriate solutions,which makes the paper has always given prominence to prevention and basis.Only preventive measures can ensure that the entire government procurement is impartial in its growth process,and always continuous develops on the direction towards the scientific and reasonable. |
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