Research On The Legal System Of Public-private Partnership In Urban Rail Transi

The development of urban rail transit is fundamentally a public interest issue.The public-private partnership of urban rail transit should respond to the real legal needs of citizens and rail transit industry.Urban rail transit,as a means of big city development,is facing two problems of "high financial pressure" and "high decision-making difficulty",which should be solved with the help of public-private partnership investment and financing mode and public governance mode.Facing the legal defects of public-private partnership in urban rail transit in China,we should implement the legal concept of "sustainable development" under the basic position of "taking the people as the center".Among them,economic sustainability requires public-private partnership of urban rail transit to realize income sharing and risk burden;Environmental sustainability requires public-private partnership in urban rail transit to realize the comprehensive development of "track + property";Social sustainability requires public-private partnership in urban rail transit to achieve fairness and justice in urban transport.Therefore,the construction of public-private partnership legal system of urban rail transit should establish the principles of science,justice,efficiency and green rule of law;From the three aspects of subject theory,behavior theory and responsibility theory,it focuses on the subject definition,behavior form and responsibility system of urban rail transit public-private partnership.Public private cooperation changes the binary opposition relationship between the government and citizens into a tripartite interactive relationship between the government,the market and society.The subject system of public-private partnership in urban rail transit should functionally ensure "multi subject participation".However,the real problem is that the subject relationship of public-private partnership in urban rail transit is not clear due to the confusion of the provisions of the project participants,the unclear organizational status of the form of private law,and the limited function of the administrative subject system.In order to clarify the subject definition of publicprivate partnership in urban rail transit,the above problems must be broken one by one.First of all,in view of the problem of "chaotic in the provisions on the project participants",although there are many subjects in the urban rail transit PPP project,such as implementing agencies,investment representatives,counterpart of public-private partnership agreements,users of public services and so on,they can be summarized as the government party with "administrative public power",The theoretical model of the social capital party with "social public power" and the social public party with "public rights".Based on this,we can clarify the specific power(right)&obligation relationship among the three subjects.Secondly,"the unclear position of organizations based on private law".On this issue,based on the comparative investigation of three typical organizations based on private law in the public-private partnership of urban rail transit,government funded representatives,selected social capital party and project company.This paper theoretically verifies the legitimacy of organizing and completing public administration tasks in the form of private law.Moreover,the legal status of private law organizations should be judged according to their degree of "publicity",and the public interests in public-private partnership of urban rail transit should be ensured through "external supervision" and "internal governance".Finally,the traditional administrative subject system should be changed under the guidance of the monism of "state society" governance.The essential characteristic of the subject of public-private partnership is "task undertaking community",and the basic classification is "project type" subject and "governance type" subject.The specific content of the public-private partnership subject system of urban rail transit needs to be carried out from two aspects: optimizing the power control rules for administrative subjects and perfecting the rights protection rules for social subjects.Public private cooperation has changed the form of administrative behavior between the government and the administrative counterpart from unilateral and highpower to the form of negotiation between two sides.The behavior of public-private partnership in urban rail transit needs to promote "cooperative relationship coordination" functionally.However,the practical problem is that due to the limitations of the function of the administrative behavior system,the differences in the attributes of public-private partnership agreements and the lack of provisions on the procedures of public-private partnership,the supply of behavior norms of public-private partnership in urban rail transit in China is insufficient.In order to clarify the behavior form of public-private partnership in urban rail transit,the above questions should be responded respectively.First,with regard to the problem of "functional limitations of administrative behavior system",the theory of "behavior form selection" provides the possibility for administrative organs to choose the behavior form of public-private partnership of urban rail transit.In practice,administrative organs will choose the form between public law acts,between public law acts and private law acts,and between formal acts and untypical acts.In the case,the exercise of the right to choose the form of behavior of the administrative organ should not only meet the legitimacy requirements of "entity content" and the principle of "form optimal function",but also always ensure the realization of the public purpose of public-private partnership in urban rail transit.Second,in view of the problem of "differences in the attributes of public-private partnership agreements",through the practical investigation of publicprivate partnership agreements of urban rail transit,it can be seen that the "general standard of administrative agreements" will fall into the confusion of distinguishing the concepts of public law and private law,and the "specific standard of public-private partnership" will fall into the dilemma of defining and distinguishing the concepts and types of public-private partnership,We should reconstruct the identification standard of the attribute of public-private partnership agreement under the theory of freedom of choice of behavior form,and establish the standards of "essence" and "choice".Third,in view of the problem of "lack of provisions on public-private partnership procedures",on the basis of reviewing the "theory of administrative behavior form",the improvement of the behavior system of public-private partnership should be done in three aspects: establish the framework rules of public-private partnership agreement for urban rail transit,constructing the planning determination and adjudication procedure of public-private partnership of urban rail transit,unifying the comprehensive development decision-making procedure of public-private partnership of urban rail transit.Although public-private partnership blurs the responsibility bearing path of the separation of public and private laws,the state cannot give up the responsibility bearing of public law because of public-private partnership.The responsibility system of public-private partnership of urban rail transit should realize "comprehensive responsibility relief" functionally.However,due to the confusion of the basic meaning of legal liability,the unclear distribution of public-private partnership liability,the single accident liability relief pipeline and other problems,it leads to the lack of public law liability of public-private partnership in urban rail transit in China.In order to improve the responsibility system of public-private partnership in urban rail transit,the above problems need to be solved one by one.First,in view of the problem of "confusion in the basic meaning of legal liability",the concept of responsibility of public-private partnership of urban rail transit should be clarified,and the concept of legal liability should be defined as "an inevitable link between the offender and relief that the offender must be punished or compensated in law",It also reveals that in a broad sense,the legal responsibility of public-private partnership of urban rail transit includes the triple logic of "national protection task","public-private partnership obligation" and "damage filling responsibility".Second,for the problem of "unclear classification of responsibilities of public-private partnership",we should reach the consensus of "mixed responsibility pedigree of public-private law" based on the investigation of comparative law,and proceed from the actual needs of our country,Clarify the responsibility distribution system structure of public-private partnership in urban rail transit by taking three measures of "delimiting the responsibility boundary of public-private law","clarifying the formal responsibility structure" and "improving the specific content of triple responsibility".Thirdly,in view of the problem of "single accident liability relief pipeline",the responsibility system of public-private partnership of urban rail transit should be specifically corrected from the two aspects of "optimizing public law liability of public-private partnership agreement" and "improving the legal liability system for damage caused by facilities" under the guidance of the concept of "coordination of public and private law liability".