The Legal System Of Access To Public Service In The Era Of Public-Private Partnership In China

At present,in China,there is no doubt about the status of Public-Private Partnership in the reform of public service supply.However,the reform mechanism is far from perfect,the benefits we all expect are only theoretical,the actual results at the end is another issue.Extraterritorial experience has proved that the Public-Private Partnerships is the double-edged sword,its application is accompanied with diversity and complexity.Therefore,after the upsurge of Public-Private Partnership,the focus of relevant research should be directed towards the rational choice of specific partners and projects,that is,the construction and improvement of public service access system.Based on the rationality and necessity of setting up the access system in the field of public service,this paper will start from the aspects of entity and procedure,emphasizing the multi-party participation,so as to address the risk,promote the success of Public-Private Partnership,and finally optimize the supply of public service.Therefore,the paper mainly consists of the theoretical basis,subject access,access procedures and the inadequacy and perfection of the existing system.The theoretical basis mainly talks about the necessity of the access system.Firstly,public service as a regulatory field,although with natural monopoly,is not completely incompatible with the competition.Differing from the ex-post competition mechanism,the competition in public service shall only be antecedent.This requires the establishment of a corresponding access system which helps the equitable distribution of eligibility and opportunities among subjects with willingness.Secondly,Extraterritorial experience shows PPP's huge advantages in efficiency and high quality of public service supply.However,PPP is not perfect.its inherent defects are also prone to cause endogenous risks.Therefore,as the first barrier to effectively control the risk of the project,the establishment of the access system is one of the foundations and fundamental guarantees for a success of public-private partnership.What's more,under Public-Private Partnerships,the government transfers the power of public services supply to the social subjects,but it does not mean that the responsibility for the part of the power is also transferred.Just in this case,the responsibility of the government turns into a fallback one which means the government should be the partner's guarantor.Thus,the government must retain the right to choose its partner,as a "price" for the transfer of its own power or the assumption of fallback responsibility,and to demand its partner diligently to provide universal public service.Subject access deals with the following problems: what is the "Private Sector" in Public-Private Partnership,what requirements the "Private Sector" should satisfied if it is capable to be led into public service.It is beneficial for the potential partner to make the cost-benefit analysis according to its own situation.It also allows relevant government departments to assess the potential partner's ability,ensuring the potential partner is the most suitable one to provide public service.The access procedure focuses on how to equitably allocate opportunities for participation among a number of eligible access entities.It is purposeful to assign rights and obligations among the public sector,the private sector and the public so as to form a competitive mechanism in advance.Different from the completely free competition in competitive areas,public service as a regulatory industry is not completely free competitive.The introduction of the competition by the Public-Private Partnership to public service area,does not mean that the government authorizes multiple subjects to split the market share,but rather to compete at the access stage and to select the best collaborators through the competition mechanism,meanwhile to have a "catfish effect" on the existing providers in the field(mostly government departments and state-owned enterprises)at the operational stage aimed to increase the market pressure on the latter,forcing it to restructure and optimize the property or business structure.Thereby,the public service efficiency gets improved.Finally,the access system to current public service areas mainly relies on government procurement laws and regulations along with relevant department policies,therefore,the article analyzes some problems arising from such construction of the access system,including the nonconformity between the Public-Private Partnership and the traditional government procurement,the uncertainty of the application of the non-bidding procedure caused by policy conflicts and the lack of supply of public participation mechanisms.Then the article puts forward the corresponding ideas on the preliminary settlement of these problems,including bringing the Public-Private Partnerships in the public procurement system,speeding up the unified legislation of public procurement;and establishing a unified regulatory agency as soon as possible to ensure policy coherence and regulatory effectiveness;and guaranteeing the public's right to know,participate and supervise the Public-Private Partnership projects through the improvement of the information disclosure system and the collective action mechanism,so as to protect the public interest.