行政特许法律关系新论

A New Study on the Legal Relationship of Administrative Franchise

"受许人的对象人"应从"利害关系人"中独立为新的行政特许法律关系主要主体。该法律关系客体(标的)是完成行政任务的"行为",而非"物"。该法律关系"标的物"并非"标的",因是完成行政任务的基础而具公物属性,含"公有公物"与"私有公物",其效力有公共役权对私权的优先性、物主的维护义务、融通受限等。行政特许各主体基于此客体、标的物产生的多维权利义务构成其法律关系的内容。行政特许法律关系的精细化研究结论有重要的理论及实践价值。

The Franchisee＇ s object should be independent from the interested party and be the new subject of legal relationship. The object of administrative legal relationship is not a MATTER, but an ACT of completing the administrative task. The object matter of the administrative franchise is different from the object. Since it has completed the administrative task that it is with the attribute of public property which can be divided into the public property of publicly-owned and the public property of privately-owned, and its legal effect is in that public easements has a priority to the private right, and there is a limitation on owner＇ s maintenance obligation and circulation etc. Administrative subject＇ s multi rights and obligations which were born of this object and subject matter has structured the contents of the legal relationship. The conclusions of the elaborately study on administrative franchise＇ s legal relationship has the important values in theory and practice.