公共服务连续性理论及我国的实践

The Continuity Theory of Public Service and Its Practice in China

公共服务包括安全秩序和经济社会两类,摆脱了公共权力站在人权对立面的角色。公共服务的连续性必须得到保障,并已成为国家良法善治的重要标志。政府可以将某些公共服务特许给私人,但政府有义务确保特许经营公用事业的持续服务,且不得任意中断其服务。政府持续的公共服务大多属于客观法,因而公民往往并无法律上的请求权。但特许经营的公用事业被行政行为非法中断,或者公民正在享受的基本公共服务遭受非法停止的,公用事业经营者或公民具有排除妨害请求权。基于满足生存权需要的公共服务请求权,在我国已得到法律上的承认。即使在应急状态下,政府也仍具有持续保障公民生存权的义务,应平等保障不同群体公民的生存权,避免对公民生存权的保护又造成另一形式的威胁,并根据实际需要替换公共服务形式。

Public services are comprised of security order and economic society. Public services are freed from the role of public power as the antithesis of human rights. The continuity of public services must be guaranteed and has become the significant embodiment of a nation’s good law and good governance. The government can license certain public services to private entities, however, the government is obliged to ensure the continuous service of the franchised utility, and shall not interrupt its service arbitrarily. Most of the government’s continuous public services belong to objective law. Therefore, citizens do not have access to legal claim. However, suppose that a franchised public utility is illegally interrupted by an administrative act, or a basic public service a citizen is enjoying is illegally stopped, the public utility operator or citizen has the right to request for exclusion of interference. The right to request public services based on the needs of the right to subsistence has been acknowledged by the law in our country. Even in a state of emergency, the government still has the obligation to continuously protect the right of citizens to live. The government should equally protect the right to subsistence of different groups of citizens, avoid another form of threat to the protection of citizens’ right to subsistence, and replace the form of public service according to actual needs.