政府驱动城市开发所需的被动性与主动性法律工具

Reactive and Proactive Legal Instruments for Government Driven Urban Development

如果政府仅仅依赖公民与企业的自觉性来执行它所制定的城市发展规划和法规,显然是无能为力的。作为这些法规构成的基础,公共利益的实现也就无从谈起。因此政府必须有能力要求公民和企业执行有关法规。然而,我们无法简单强迫土地所有者和建设规划者服从政府规划和建筑法规,因为与之相互关联的是宪政国家运转的关键基石:合法性原则(principleoflegality)。鉴于合法性原则,政府被赋予了诸多权力。法律给予政府的城市发展方面的权力包括两类:被动性权力(reactivepowers)与主动性权力(proactivepowers)。荷兰因而允许政府机构享有广泛的被动性权力与主动性权力。非常有意思的是,在荷兰这些权力并不受公共法律限制。与多数盎格鲁—萨克森国家不同,荷兰政府被允许在承担风险的基础上参与公私合作。这种合作是通过公共与私人部门的合同及建立公私合作模式的合资企业来实现的。本文详尽阐述了作为被动性和主动性政府权力基础的公法和私法工具。这些权力是政府驱动的城市开发制衡市场驱动的城市开发的真正至关重要的因素。

Govemments would be fairly powerless to implement their urban development plans and regulations if they were solely dependant on the voluntary compliance of citizens and companies. Public interest, which afier all constitutes the foundation of regulation, would be poorly served as a consequence. Governments must be able to require compliance from citizens and companies. However, landowners and initiators of building plans cannot be forced to comply with governmental plans and building regulations just like that. This is interrelated with the operation of a crucial cornerstone within a constitutional state： the principle of legality. Following the principle of legality, many powers have been given to governments. Powers in the field of urban development, which are attributed to the government by law, fall into two categories： reactive powers and proactive powers. The Netherlands allows governmental bodies to use a broad range of reactive and proactive powers. It is very interesting to note that in the Netherlands these powers are not restricted to public law. Unlike most Anglo-Saxon countries, Dutch governments are allowed to engage in public private partnerships on a risk-taking basis. This is brought about through contracts between the public and private sectors and through the establishment of PPP joint venture companies.This paper elaborates on the mix of public and private law instruments that underlie reactive and proactive governmental powers. These powers indeed are vital for government driven urban development, as opposed against market driven urban development.