| "Government Procurement Law of the People’s Republic of China (hereinafter referred to as the" Government Procurement Law ") has been promulgated and implemented for nearly ten years, which has played an important role in regulating behavior of government procurement and promoting procurement activities open, fair and impartial, and also has made remarkable achievements in saving the financial capital and improving capital efficiency, etc.. However, in practice, the proces also exposes many problems, such as government procurement legal system is too rough, relevant supporting regulatory is delayed, there is a conflict between Government Procurement Law and Bidding Law, and the purchasing subject and behavior are not defined precisely, and so on. With the development of market economy and continuously strengthen of government functions, government procurement as an important means of public expenditure management, which the role of macro-economic regulation and regulating the financial expenditure to maintain an orderly market will become more and more important. Therefore, it is necessary to perfect the legal system of government procurement, in order to ensure government procurement activities smoothly carry out with legal and rule basis "in the sunshine", and play its public finance expenditure function, effectively achieve its macro-control policy functions. It is in this context that the paper starts from the basic theory of the Government Procurement Law, summarizes and compares with current the hotspots in theory research, especially the focus of controversial issues, and finally proposes the necessity of perfecting government procurement law. Through the analysis of the status of the Government Procurement Law implementation and the summary of international experience, the paper teases out the main problems in the implementation of the Government Procurement Law in China. On this basis, it puts the Yantai government procurement operation mechanism as the practical experience, and analyzes experiences and shortcomings of the Yantai government procurement practices. It also reflects on improving the legal system of China’s government procurement and makes relevant recommendations.There has been a lot of theoretical research results on the connotation and denotation of government procurement, and international organizations and developed countries also have many advanced experiences. Based on the previous studies, this paper starts from the intrinsic property, function and management mechanism of the government procurement policy. First of all, according to basic legal principles of the purchasing behavior and "whether it contains fiscal funding or not ", it makes a clearer explanation of the procurement fund and scope of the procurement subject and analyzes the necessity and feasibility of including the project into procurement object. Second, government procurement, which is an important means of financial expenditure, undertakes certain function of macroeconomic regulation and control policy, which is an important means of financial expenditure. But as far as the government procurement itself, its macroeconomic regulation and control function is indirectly. So, the government needs rationalize coordination and convergence of policies and regulations between the government procurement and other function fields from a global perspective to pool efforts. Third, the government procurement activities are completed by capital transaction of the government procurement subjects, whose macroeconomic policy functions are achieved through government procurement activities constrainted in the management mechanism. So the government procurement management mechanism is not only a product but also a defender and practitioner of the legal system.In order to make the study more realistic, this paper makes comprehensive use of "economic man" hypothesis, Keynesian macro-control theory and public choice theory as legal basis. According to the "economic man" hypothesis, the "economic man" pursuits for maximum profit as a target, in order to prevent its pursuit of personal interest at the expense of the public interest, his behavior should be regulated by the legal system, so that it is necessary to improve the system of government procurement law. Keynesian macro-control theory suggests that the government’s macro-control means to overcome "market failure". The government procurement as a means of financial expenditure should bear part of the macro-control policy function, but also has brought "government failure". Public choice theory solves the above problem, advocating the inability of the government in the market should rely on the operation of the market itself. So the management mechanism of government procurement should insist "do something but not everything" and make a clear distinction of the respective functions between the government and the market.Theory is used to guide practice, and practice has reaction in the development of the theory. Government Procurement Law has made significant achievements in China’s government procurement practices within a decade. We established the basic system of government procurement and realized the savings and efficiency of the financial capital. However, due to the legislative level of the government procurement law is not high, the legal line is too rough, the conflicts between laws and imperfections of the related regulations, the constraints of the law is not strong and the definition of government procurement behavior is not detailed, there are variety purchasing patterns and regulatory mechanisms in practice. At the same time, because "Absent" and "offside" coexist in the government behavior, the macro-control function can not play fully and the implementation of the fiscal policy is not in place, macroeconomic policy undertaken by the Government Procurement function is not reasonably reflected. Therefore, the paper chooses Yantai government procurement work as an empirical case study, which is representative and typically significant. Yantai government procurement work process confirms the successful enactment and implementation of the Government Procurement Law, and also has innovation and development combined with the local reality. Yantai government procurement operation mechanism is built on the basis of the "four in one" public financial expenditure pattern and embodies the comprehensive supervision and management of beforehand, during and after. The establishment of a "centralized procurement agency" realized the government procurement market operation and completed the practice of public choice theory, also innovated government procurement mode. For the problem of the projects included in the scope of government procurement, Yantai operating mechanism works procurement as the link in the chain of government procurement regulation to ensure the integrity of the government procurement object. At the same time, there are problems of inadequate policy function in Yantai government procurement operation mechanism, and it requires to be improved by the combination of domestic and foreign advanced experience. Based on the integrated theory, macro background and problems analysis, and Yantai mode study, perfecting the legal system of China’s government procurement should focus on improving the legal system, strengthening macroeconomic policy function and improving the regulatory mechanism. First, improve legislative level, perfect supporting legal system, strengthen government procurement system "standardization" construction. And then, Focus on convergence and continuity of macro-control policies, give full play to the government procurement policy which is based on the perspective of public finance. Finally, extend government procurement supervision and management to the ex ante and ex post, and realize whole process of government procurement supervision.There are two research methods mainly used in this article:First, combination of normative analysis and empirical analysis. The normative analysis is from the point of view of legal system itself, the empirical analysis is from the point of view of domestic and international practice, and proposes "what should" on the basis of "what is". Especially, it makes detail analysis on Yantai mode as the case to explore the direction of perfecting China’s government procurement law system. The second is comparative study. It summarizes the advanced nature of the international legal regime by comparing with the government procurement legal system of international organizations and developed countries, and provides a reference for perfecting the legal system of China’s government procurement.The innovation of this paper is the combination of theoretical study and practical application, and the comprehensive use of "economic man" hypothesis, Keynesian macro-control and public choice theory. At the same time, it collates much information of Yantai government procurement. The content of the study is closely combined with practice, and the thinking and suggestions are also very practical. In addition, this article only made reference use of some legal facts to provide a new thinking of improving China’s Government Procurement Law, but not to re-design a set of programs. At the same time, the author can not do powerfully quantitative analysis and empirical analysis because of the difficulty in collecting cases and data, which will be put into more efforts in the future study. |
PDF Full Text Request