Research On The Quasi-property System Of Administrative Franchise

Under Privatization of public rights background,the property disputes of Administrative agreement among civil law scholar and administrative law scholar for a long time.As for the “Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases”,the administrative agreement mentioned includes those on the assignment of mineral rights or other rights to use state-owned natural resources,which undoubtedly expands the category of the administrative agreement.Although the Supreme People's Court(hereinafter referred to as “the Court”)issued guiding cases,it frequently happens that the same or similar cases are judged differently due to the Court's contradictory attitudes to the public-law and private-law attributes of the administrative agreement.At present,what we should do is to analyze and define the attribute of litigation right according to the administrative agreement as a civil contract,instead of blindly expanding its boundary.Regarding the cases where the agreement is breached or violated unilaterally by administrative organs,specific stipulations agreed in the agreement that is defined as the administrative one shall be deliberated to judge whether the administrative organs shall bear liabilities for compensation or for indemnity,instead of unduly focusing on the administrative priority while neglecting the administrative counterpart's all franchises as property.In spite of being a quasi-property right,administrative franchise shall be regarded as a property right.Rather than always focusing on its public-law attribute,its private-law attribute shall be enlarged,and its property value and disposition shall be acknowledged.Despite the fact that the relevant provisions on administrative franchise scatter among the special laws,department regulations and local regulatory documents,it cannot be denied the value of the administrative franchise as a quasi-property right in the property law system.China's existing legal system only protects franchises on certain natural resources as usufruct.Still,there are a large number of franchises onnatural resources and public resources not incorporated into the property law system.Further,“The Property Law of the Civil Code(Draft)”(hereinafter referred to as “the Draft”)only incorporates the right to use sea areas as mortgaged property,which extends the scope of accounts receivable under the pledge rights.Nevertheless,the Draft cannot define the administrative franchise,making it obscure in the property law system.However,most of the administrative franchises are acknowledged in practice in that they can bring benefits.So the administrative franchise can be pledged as it is incorporated into the accounts receivable under “Measures for the Registration of the Pledge of Accounts Receivable” issued by People's Bank of China.Therefore,it is necessary to make clear which existing administrative franchises can be taken as quasi-property right.As a quasi-property right,the administrative franchise is not universally limited to “two major resources and one major industry”.By calculating all kinds of franchises scattered among the special laws,department regulations and local regulatory documents,and taking comprehensive consideration of the standards such as the public attribute of the quasi-property right,the complexity of the object,and the force of the property right,the franchise is excluded under the PPP model,and it is incorporated into the category of quasi-property right the franchises on natural resources to allow hunting,felling,and carbon emission and on exclusive public resources.