能源体制改革下油气对外合作开采的规制失灵与规范路径——以《对外合作开采海洋(陆上)石油资源条例》为研究

The Market and Regulation Failure of Petroleum Foreign Cooperation in Energy System Reform: Take Regulations on the Foreign Cooperative Exploitation of Offshore(Onshore) Petroleum Resources as an Example

《对外合作开采海洋(陆上)石油资源条例》自诞生之始就在油气对外合作开采领域铸就了"资源国家所有、国企负责专营"的运作模式。该条例的现有规定存在行政主管部门不明、油企环保义务缺失、法律责任虚化的弊端。在新一轮能源体制改革的背景下,该条例应当从行政垄断的制定者、国企特权的维护者,转变为市场规则的裁判者、公共利益的捍卫者。条例的修改应当明确主管部门的范围及权限,明晰油气国有企业的环保义务和法律责任,使政府规制的公益目标付诸于立法行动与法律施行之中。

Abstract： Regulations on the Foreign Cooperative Exploitation of Offshore （Onshore） Petroleum Resources was born in the administrative monopoly time, shaping a ＂the state possesses resources and state-owned enterprises monopolize them＂ mode in the field of foreign cooperative exploitation petroleum. Using oil business nationalization to replace market competition can overcome market failure. However, this formation has triggered regulation failure with varying degrees, such as overlapped executive functions between supervision departments, low efficiency on oil field zones and regulatory capture. Therefore, we should reposition the social role of Regulations on the Foreign Cooperative Exploitation of Offshore （Onshore） Petroleum Resources from a constitutor of government monopoly and an advocate of privilege to a judicator of market-led rule and a defender of public interest. The revision of the regulation should clearly define which executive branch has what obligation to conquer the disorder in government regulation, and detail the environmental protection obligation of state-owned oil enterprises to resolve the negative externality caused by operational pollution, in order to put the public objective into legislative act and law enforcement in governmental regulations. Key words： oil system reform; petroleum foreign cooperation; administrative monopoly; market failure; regulation failure