중국 공용사업특허경영의 법률관계와 운영체계에 관한 검토와 개선방안

Although the development of urbanization has achieved rapid growth, a lot of problems have occurred. One is that the Chinese government has more than 20 ×1012 yuan in debt, which continues to increase. In order to solve the financial burden, China's national development and reform commission corporates with six departments to formulate the “operation and management of the infrastructure and public utilities franchise”. With the ever issued the “municipal public utilities franchise management method”, it becomes the main legal documents for the regulation of China's infrastructure and public utilities franchise. Due to the public welfare of public utilities, public welfare undertakings in China must be licensed by the government. According to the current law, there are two ways to achieve the administrative licensing. The first one is to get the administrative licensing after the implementation of public utilities franchise; the second one is the government and the private capital signing a contract, automatically to obtain the franchise. Regarding the nature of the franchise contract, it is a contract for the public law, private law, and the mixed contract. Along with the doctrinal opposition, it also brought difficulties to the lawsuit. According to the current precedent, it is considered as a civil contract, or an administrative contract, so a dispute in practice appears. Under the public utilities franchise business operation system, the choice of private capital is one of the most important factors. According to regulatory documents of the central government and local governments, there exists conflict in the way of choice. Namely, it should apply to the “Tender law” or the “Government Procurement Law”. The first step to improve these problems is legislation. About the legislation, we should determine the purposes and principles of the legislation, and refer to the legislative models of other countries in the world. According to China's national conditions, we should choose the mode of unified legislation and combining with the individual legislation. At the same time, the guarantee mechanism of Public Utility Concession should be published, for example, setting up Public Utilities Concession management agencies, a new supervision, and evaluation mechanism. Moreover, because of the public nature of the franchise business, to guarantee citizens' right to be informed, the information should be published during the implementation stage. The biggest problem for the Public Utility Congress is that the dispute resolution mechanism is not perfect. From the point view of the law, it's appropriate to use an administrative suit, but the reality is that there are a lot of constraints to the administrative litigation. Moreover, the rules of conflict resolution in various departments are different. In order to solve these problems, the unified laws and regulations are required. Applying civil capital is one of important means for the franchise operation of the public utility, which is beneficial to the relief of government, especially the financial burden of local government. However, the loss in the law causes many problems. In order to solve these problems, it is necessary to set up a unified law, realize the plurality of dispute settlement modes, establish supervision and management, and manage the risks rationally.