论政府在购买公共服务中的角色定位及其法律责任——以法律关系基本构造为分析框架

On the Role of Government and Its Legal Responsibility in Government's Purchase of Public Service——Taking the Basic Structure of Legal Relations as the Analytical Framework

政府购买公共服务是公私合作行政的一个具体面相,是政府通过市场力量完成公共服务任务的一种新型行政方式。从逻辑架构上看,它引起了法律关系的变化,即由"政府-公民个人"的双方构造变革为"政府-私人主体-公民个人"的三方构造。在三方构造法律关系中,政府扮演着合同主体、监管者、担保者三重法律身份,并据此承担合同责任、监管责任、担保责任三种法律责任。合同责任是一种约定责任,政府应当秉持意思自由的私法精神,遵循诚实守信的私法原则;监管责任是一种常态性的法定责任,它是政府作为国家公权力机关承担职责的具体体现,政府应当对公共服务的质量和价格实施必要监管;而担保责任则是一种非常态性的法定责任,它是国家政治责任在法律上的贯彻和实现,仅在生产商根本性违约、新的垄断可能发生或已经发生、破产等特定情形下,政府通过接管、代履行等方式承担担保责任。可见,公私合作治理模式的兴起已经促使了传统行政法的整体性变革,而我国政府责任法律制度也面临着新的抉择。

The government＇s purchase of public service is a concrete manifestation of public-private partnership administration, and it is a new administrative way for the government to fulfill public service tasks through market forces. From the perspective of logical structure, it has caused changes in the legal relations, namely the transformation of two- party ＂governmentindividual citizen＂ to the three- party ＂government-private subject-individual citizen＂ . In this three-party legal relation, the government has triple legal statuses of contractor, supervisor and guarantor, and accordingly assumes the contractual lia- bility, the supervisory responsibility, and the guarantee liability. Contractual liability is a kind of contrac- tual responsibility. The government should uphold the spirit of private law of freedom meaning and follow the private law principle of honesty and trustworthiness. Supervisory responsibility is a normal statutory responsibility. It is a concrete manifestation of the government＇s responsibility as a state public authority. The necessary supervision should be implemented on the quality and price of public services. And the guarantee liability is a non-status statutory responsibility. It is the legal implementation and realization of the political responsibility of the state. Only when the producers fundamentally breach the contract and there could be or has been new monopoly or bankruptcy, etc. , should the government assume its guarantee liability by taking over or performing duties on behalf of the company. It can be seen that the rise of the public-private partnership administration model has promoted the overall reform of the traditional administrative law, and China＇s government responsibility legal system is also facing new choices.