Study On The System Of Compulsory Contracting Of Public Utilities

In most cases, based on the principles of contract freedom, every civil subject hasthe right to freedom of contracting parties, which is whether to enter into a contractfreedom and freedom of choice of the other party. However, Since the late19th century,after entering the stage of monopoly capitalism, the contracting freedom sufferedserious challenges. In the field of water supply, electricity, gas, heating, postalcommunications, public transportation and other necessities of the public survival andlife, because suppliers usually occupy a dominant market position of public utilities, ifthe utility has the right to freedom of contracting, the transaction of the other party ofthe contracting freedom is greatly limited. If left unchecked and not to intervene, notonly the social public survival and living conditions are difficult to guarantee, and equalcompetition environment will cease to exist, social stability and the market economywill be unsustainable. In this context, in order to ensure the autonomy of private andavoid the useless, duty of compulsory contracting on public utilities has become theinevitable choice of legislative. Many countries, including China, and regions haveestablished a regulatory system of compulsory contracting of public utilities in thelegislation.By studying public utilities theory achievements and the legislative status quo ofcompulsory contracting system at home and abroad, we could perfect the system ofcompulsory contracting of public utilities and propose advice for this. Except theintroduction and conclusion, this paper will be divided into four parts:Part1, introduce the general principles of compulsory contracting mainly. First,define the compulsory contracting and analyze its differences with the model contractsand the command contracts. Secondly, introduce compulsory contracting classification;according to the different points of view, there are three kinds of different classificationsof compulsory contracting: absolute compulsory contracting and relative compulsorycontracting, direct and indirect compulsory contracting, private law and public law ofcompulsory contracting.Part2, the comparative analysis on system of foreign compulsory contracting ofpublic utilities. By the civil code, Russia directly established the system of compulsorycontracting of public utilities. Using the legal interpretation, Germany established theindirect compulsory contracting of public utilities. Through cases, America setted up the system of compulsory contracting of public utilities. Through the comparative analysis,we could discover the reference for our country.Part3, introduce the present situation and the insufficiency in the system of ourcountry’s compulsory contracting of public utilities mainly. First of all, introduce theconcept of public utilities and analyze its meaning and characteristics. Secondly,analyze the causes of the compulsory contracting of public utilities, mainly includingthe requirement of the government function, the requirement of contract justice,political and economic requirements of a particular purpose and the requirement ofcorporate social responsibility. Then, analyze the nature of the compulsory contractingof public utilities, clearing its civil law attribute. Then, by listing the related laws andregulations, which introduce our country’s system of compulsory contracting of publicutilities. Finally, summarize deficiencies about our system of compulsory contracting ofpublic utilities, specifically including the lack of principle provisions, the narrowapplicable scope, unclear justifications and lack of civil liability standards four issues.Part4, how to perfect our system of compulsory contracting of public utilities areproposed. Concrete measures including the introduction of provisions in principle,expanding the scope of application, clearing justifications and improving the civilliability. Justifications mainly includes the justifications selectivity with the other partyof the contracting parties, contracting requirements and disgraceful consideration inviolation of law, or force majeure. Perfecting civil liability refers explicitly civil liabilityof nature, bear mode and applicable way.