The Study On The Temporary Takeover Regime Of Municipal Utilities Franchise

Temporary takeover regime of municipal utilities franchise as the embodiment of thenational back-up responsibility after privatization has its justification and necessity. At thesame time, for the franchisees, the temporary takeover regime may violate their property andindependent operation rights. So, restrictions to the application are necessary. At present, ourcountry lack of temporary takeover related legislation, which lead to its overuse, withoutprocedural limit and supervise. When the stable operation of the public utilities is jeopardized,the government mostly lacks of effective regulatory means except temporary takeover, whichgive rise to the abuse of the method.Under the background of municipal utilities franchise, the role of the private is revalued,so do their independent and self-regulation ability. The government turns from utility operatorto regulator, which guarantees the continuity and universal service of the public service. Asone of the means of government regulation, temporary takeover can reduce or avoid theimpacts from emergencies. However, its application may directly intervene in the marketoperations, which needs enough "restraint" to its implement. According to the legislative spiritand legal theory, when and only when there is a threat or may threaten the stable operation ofpublic utilities, in which condition the franchisee cannot maintain the utilities minimumoperation, the government takeover the utility temporarily is legitimate. Therefore, temporarytakeover should return to its original function. Its implementation procedure also should beperfected.This paper mainly includes the following three parts:The first part analyzes the present situation and problems of temporary takeover. Thispart makes a carding of temporary takeover legislation, which imperfect in low legal status,lacking of specific legislation, overbroad application condition, lacking of supervision andrestriction mechanism, and so on.The second part analyzes the legitimacy of the temporary takeover and its limit. After themunicipal utility franchise, the government turns from provider to guarantee, which graduallyrelax restrictions on public utilities. However, it doesn’t mean that the government completelywithdraws from the field, rather improve and strengthen the regulation on public utilities andfranchisee. Moreover, the traditional regulation pattern shall be broken for the government’s poor regulation capacity. The growth of civil autonomy and participation concept also requirethe establishment of the public-private partnership regulatory model with self-responsibility,third party participation, and government regulation in it, which will form a regulatory patternof subject pluralism and distinct responsibility. Under that regulatory mode, the applicantconditions and procedures of temporary takeover shall be restricted.The third part talks about the improvement of the temporary takeover regime. This partstarts from the function orientation of temporary takeover. Moreover, it talks about theprinciples, subject, conditions, procedures, supporting regimes of temporary takeover regimeto perfect it.