Research On Practical Problems And Countermeasures Of Government Revocation Of Concession In China

In the practice of public utilities concession,the government revocation of concession is not only an abnormal mechanism for the project operator to pull out of the market,but also a necessary means for the government to supervise and administrate the concession projects for the intent of safeguarding the public interests.Because the decision of the revocation will lead to extinct operator's concession,so conflicts between the government and the project operator frequently occur at this stage.Based on the judicial cases and legislative norms in regard to the revocation of concession,there are still many problems in the system of revoking concession in China,which needs relevant theoretical study to follow up urgently.Based on the analysis of the causes of the practical problems and the theoretical basis of the government's power of revocation,this paper will put forward some countermeasure to perfect the system of the government revocation of concession in our country.The first part discusses a series of practical problems respecting the government's revocation of concession in the judicial cases.Firstly,the administrative organ lacks sufficient normative consciousness when revoking the concession,which reflects in two aspects:the arbitrary reasons for making the revocation decision and the weak consciousness of revocation procedure.Secondly,some key issues remain controversial when the court hears the administrative disputes related to the revocation of concession.Finally,there are some defects in the compensation system after the concession has been revoked,so it is hard to guarantee the original concessionaire's right of full compensation.The second part analyzes the reasons of the practical problems mentioned in the first part,mainly covering two aspects:legislation and theory.At the legislative level,the existing provisions on the government revocation of concession are not perfect.Not only the high-level legal document is in absence but also the provisions on revocation situation,revocation procedure are in chaos.At the theoretical level,in consideration of the unripe theoretical research about government revocation of concession,there are some controversial issues in the judicial practice.The third part tries to analyze the government's revocation of concession deeply and comprehensively by using German two-step theory to fill in the vacancy in the study of this field.This part mainly includes the theoretical basis of revocation,the principles that the government should follow in the process of revocation,and the nature of the revocation act in different circumstances.On the basis of this analysis,the controversial issues in the judicial practice mentioned in the first part will be clarified.The fourth part puts forward some countermeasures and suggestions on how to perfect the system of government revocation of concession.Firstly,the legislative provisions on the revocation of concession shall be perfected by enhancing the legal hierarchy of the central-level management measures as well as making the explicit rules on the revocation of concession.Secondly,fair compensation mechanism after the revocation shall be explored,Specifically,the reasonable compensation standards shall be established and the procedural provisions for making compensation decisions shall be perfected.Finally,there are two suggestions on how the court can better deal with the disputes related to the revocation of concession.The first is that the legitimacy,reasonability and contractual review standards towards the government revocation act shall be established.The second is that it is necessary to specify the standards for the application of law according to the different revocation circumstance.