我国公路经营权契约规制论——以政府特许经营协议为中心

On the Regulation of Road Franchise Contracts in China:Centering on Franchise Contracts

我国公路经营权伴随公路基础设施民营化和股份制改革而生,其性质属于源自政府特许经营协议的民事权利。基于公路经营权的私权利性质与公益性特点,传统命令与控制的监管方式无法达到有效的监管目标。契约规制是一种新型的规制方式,运用于公路经营权时主要表现为:通过在特许经营协议中安排规制性条款,实现公路经营企业自愿地接受和担负起监管责任。这些监管性规范可分为强制性规范和任意性规范。公路经营权的契约规制旨在通过正当程序形成具有监管效果的契约条款,达到私人主体依照合理价格持续提供公共服务的调控目标。

The road franchise is rooted in the privatization and stock reform of traffic infrastructure. There is a controversy about the nature of the road franchise as a civil right or an administrative power. The road franchise stems from public franchise,so it is a civil right,but also reflects public interest factor. As the road franchise is a civil right and is featured by public interests,traditional regulation relying on command and control cannot take incentive mechanism as regulation factor and thus cannot get its goal effectively because of excessive rigidity. Faced by the trend of regulation reform,the contract regulation,a sort of self-regulation,is a new tool of public governance. It introduces mandatory norms into the contracts,to ensure that the enterprises accept regulation and take the responsibility of regulation. The advantages of contract regulation lie in that it makes the incentive mechanism embedded in the regulation system,to attain better regulation. It also can expand the participation of the regulated and the stakeholders, to improve the rationality of regulation policies. Nowadays,as for the construction of the system of road franchise regulation,the main difficulty is how to arrange the regulated norms into the franchise contracts,to achieve the aim that the regulated enterprises carry on the regulation responsibility voluntarily. Firstly,the regulated norms can be divided into mandatory norms and arbitrary norms. The aim of the contract regulation is to format regulatory norms through rational and legitimate procedure,and then achieve the aim that the private subjects provide public services continuously. So,any provision involved should be the mandatory norms,and they don＇t allow the parties to do any modification by negotiations. Secondly,the mandatory norms of road franchise contracts must include content such as： （1）toll rate standard,adjustment procedure and ways,which should conform to the bottom lines of the law,and then could be negotiated further;（2）balance of payments that refer to the public finance and the prices of the public services; （3） the content,scopes and procedures of information publicity which can prevent the enterprises from break the rights of the consumers through information dissymmetry; （4）compulsory acceptance and requisition that refer to deprivation and compensation of private property,and should be restrained by mandatory norms. Besides those norms,the content of the contracts should be reached by negotiations. At the process of the norms formation,the valid administrative procedure including public participation should be applied,as to reach the regulation goals.