公用事业特许监管的制度性风险及其制度体系之建构

Construction of Institutional Risks and Institutional Systems of the Public Utilities' Franchise Regulation

本文认为,现阶段我国公用事业特许监管中普遍存在的管制过度、监管不力和监管缺位等问题,在很大程度上是由于监管体系设计未能完全到位导致的。我国公用事业特许监管制度具有明显的政策主导性,相关政策体系不完整、相互冲突,监管方式缺乏可操作性;监管制度的法制化进程滞后,现有法律制度中市场准入机制不健全、审批机制设计不合理、监管方式规范化程度低、公众参与机制缺失。公用事业特许经营是一个长期的过程,政府应在"过程性监管"思维的指导下构建系统的监管体制。具体来说,政府的过程性监管应按时间要素分为事前监管、事中监管和事后监管。事前监管主要包括风险评估、市场准入和特许协议制度,事中监管主要包括价格监管、安全监管、绩效评估和临时接管应急处理制度,事后监管主要包括市场退出制度等。

The paper holds that the problems of our country’s public utilities’ franchise regulation generally existing overregulation,weak regulation and regulation omission and so on at present stage are due to that the design of institutional systems is not totally in its place to a great extent. Our country’s public utilities franchise regulation system has obvious policy dominance,incomplete relevant policy systems,mutual conflicts and lack of regulation patterns’ operability.Meantime,the legalization process of the regulation system is legging behind.Now there exist the market access mechanism not wholesome in the law system,the design of the examination and approval mechanism not reasonable,the degree of standardization of regulation patterns low and the absence of the public participation mechanism.The public utilities’ franchise operation is a long-term process.Governments should construct regulation systems of the system under the guidance of the ＂procedural regulation＂ thought. Concretely speaking,the procedural regulation of governments should be composed of the proactive regulation,the regulation during the process and the regulation after the process according to the time factor.The proactive regulation mainly includes the risk assessment,the market access and the concession agreement system.The regulation during the process mainly includes the price regulation,the safety regulation,the performance evaluation and the emergency treatment system of temporary takeover.The regulation after the process mainly includes the market withdrawal system and so on.