公私合作契约的赋权类型及司法救济——以公用事业的收费权为视角

Type of Public-private partnership Contract Empowerment and Judicial Remedies——From the Perspective of the Right to Charge for Public Utility

公私合作是公用事业市场化的制度安排。行政主体与企业的公私合作是基于公用事业收费展开的,企业收费权能源自行政主体的授权与特许。公私合作契约在行政的过程中并非独立的行为,而是授权或特许行为的载体。行政主体与企业基于公私合作契约形成行政法律关系,相关争议适用行政诉讼法救济。基于授权与特许,企业与利用人分别形成行政法律关系和民事法律关系,分别适用行政救济和民事救济。

The public-private partnership is the institutional arrangement of public utilities in public-ownership marketization. The public-private partnership between administrative organization and private organization is based on utility charges. The right of private organizations to charge is an authorization and concession granted by the executive authorities. The public-private partnership contract is not an independent behavior in the administrative process, but the carrier of authorization or concession. Based on the public-private partnership contract, the administrative organization and the private organization form an administrative law relationship. Legal disputes between them are applicable to the Administrative Procedure Law relief. Based on the authorization and concession, the private organization and the user respectively form an administrative legal relationship and a civil law relationship, and apply to administrative remedies and civil remedies.