论公共提供的制度安排及其法律调整模式——兼谈我国公共提供的分类改革

Study on the Institutional Arrangement and Legal Regulation Pattern of Public Provision ——Also a Discussion on Classified Reforms in Public Provision in China

社会物品一般分为私人物品、可收费物品、共用资源和公共物品四类,且基于效率性、公益性和公平性的不同目标分别由私人、政府和私人以及政府来提供。对于公共提供与私人提供分别服从于公法与私法调整模式,采用公法人与私法人制度,对于可收费物品则服从于特殊法调整模式,采用特殊法人制度。我国公共提供应采用相应的法律调整模式与法人制度进行分类改革。

Social goods are usually divided into individual goods, tool goods, common-pool goods and collective goods. The provision of common-pool goods, collective goods, tool goods and individual goods should obtain the following goals respectively: justice, public welfare and efficiency. Generally, it is the government who provides common-pool goods and collective goods. However, it doesn't exclude private provision. Tool goods can be provided either by government or individuals, but mainly through public and private cooperation, namely, mixed provision. And it are usually individuals who provide individual goods, however, it doesn't exclude public provision. The legal regulation patterns and corporate entity institutions on the basis of different social goods provision are different from one another. The provision of common-pool goods and collective goods is usually subordinated to the regulation of public law pattern and adopts public corporate entity institution. While the provision of individual goods is subordinated to the regulation of private law pattern and adopts private corporate entity institution. Similarly, the provision of tool goods is subordinated to the regulation of special law pattern derived from public law pattern and adopts special corporate entity institution. The feasible method of reforms in public provision in China should be based on the characteristics of the goods provided by governments and state-owned enterprises, adopting corresponding legal regulation pattern and corporate entity institution to carry out classified reforms.