Research On The Compulsory Contracting System Of Public Enterprises In The Civil Code

As stipulated in Article 648 Paragraph 2 of the Civil Code of China,power suppliers are obliged to reach power supply agreements under the reasonable requests of users.This obligation is newly introduced by the Civil Code as opposed to the Contract Law.Whether it is a compulsory contracting obligation,how to interpret the clause and what obstacles are facing its implementation are at the core of this study.Article 656 also stipulates that the obligation set by Article 648 shall apply to the supply agreements of water,gas and heat.Therefore,this study further elaborates on whether the Civil Code has established a compulsory contracting mechanism for public enterprise,why the Civil Code has imposed such an obligation,how to apply the clauses in different industries and whether there have been other laws and regulations around this issue,and if so,whether those laws and regulations can be the sources of this legal obligation.This thesis,based on literature research and empirical analysis primarily,will focus on Article 648 Paragraph 2 of the Civil Code,including its content,relevant legal theories,legislation and legal practice.It is divided into three parts as follows:The first part will touch upon the basics of compulsory contracting obligation.Firstly,it will analyze the concept of compulsory contracting on the ground of legal theories and relevant laws and regulations.Secondly,it will analyze the implications of compulsory contracting,including the theoretical implications of compulsory contracting and the practical implications of public enterprises' obligation of compulsory contracting.The second part will analyze the compulsory contracting clauses of the Civil Code of China.Firstly,it will analyze the nature of Article 648 Paragraph 2,such as whether it is a public law obligation or a civil law obligation,and the differences between compulsory contracting and compulsory performance of contracts.Secondly,it will analyze the constitution and contents of public enterprises' compulsory contracting obligation,including the application in supply of water,gas and heat,and the legal definition of “public enterprise”.Lastly,it will analyze the underlying problems,as the subject and scope of the obligation,the criterion for measuring “reasonableness”,the outcome of unfulfilling the obligation and the differences among different industries remain unclear.The third part will focus on how to improve the mechanism on the basis of current laws and regulations around public enterprise.Firstly,it will analyze the sources of the obligation,such as law and regulations around the supply of power,water,gas and heat,as well as anti-trust rules.Secondly,it will propose recommendations of improvements by suggesting methods and standards for determining the outcome of unfulfilling the obligation,defining the subject of the obligation,and measuring the reasonableness of users' requests.All in all,Article 656 and Article 648 Paragraph 2 have together established the compulsory contracting mechanism for public enterprise,including but not limited to power suppliers.Given that these clauses are general principles lacking specific rules,this thesis aims to clarify certain aspects of the mechanism by analyzing its nature,contents and implementation,as well as proposing recommendations for the mechanism's improvement.