Research On The Protection Of The Third Party’s Tights In Government Franchise Agerrment

Government franchising is a public-private cooperation model in the field of infrastructure and public utilities.As the authorized party,the administrative subject agrees through an agreement that the private subject will construct and operate infrastructure and public utilities to provide public products or services within a certain range and period.The agreement has both administrative and contractual nature.The administrative nature determines that the administrative subject is in a natural advantageous position.The contractual nature determines that the self-interested private subject will participate in the whole process from the establishment to the end of the project.Meanwhile,since government franchising mainly exists in infrastructure and public service fields that are closely related to people’s livelihood,its public welfare attribute determines that it will inevitably involve the protection of third party rights.However,both administrative and private subjects are profit oriented,which has led to frequent cases of administrative and private subjects colluding or unilaterally infringing on the rights of third parties in practice for their own interests.This article focuses on the third party outside the agreement,which can not only fill the gaps in the study of third party rights protection in government franchise agreements,but also help build a more systematic public-private collaboration model and promote the system to develop in a healthy way.The first part clarifies the basic concepts of the government franchise agreement and the third party of the agreement.First,the basic concept of the government franchise agreement is explained from the three aspects of connotation,element and nature;second,the concept of the third party in the agreement is basically defined,and the third party is classified based on the final attribution of objective interests.The second part mainly summarizes the main existing problems in the protection of the rights of the third party in the franchise agreement from the system level and the rights relief level.At the system level,there are mainly problems such as the lack of clarity on the administrative subject’s prior contract obligations and responsibilities,the obligation and responsibility of administrative subject are inconsistent,and the imperfect public participation mechanism.The legal norms related to the protection of the rights of third parties are scattered,incomplete,and poor in actual operability.In terms of rights relief,the administrative reconsideration relief channels for the third party in the agreement are blocked,the administrative litigation relief system for the third party in the agreement is imperfect,It is difficult for the third party of the agreement to obtain compensation for losses through state compensation.The reasons are analyzed from four aspects: the difficulty of unifying and coordinating the multiple identities of the administrative subject,the "obligation check and balance power" model has not yet been clarified,the lack of regulation of the responsibility for the abuse of administrative benefits,and the failure to synchronize the design of the relief plan for the damage of the third party’s rights and interests.The third part is aimed at the contradictions and problems in the existing system,and proposes optimization suggestions for the protection of the rights of the third party in the agreement.In terms of the system guarantee for the realization of rights,the pre-contract obligations and responsibilities of the administrative subject should be clarified,strengthen the consistency of administrative subject’s obligation and responsibility,and improve the public participation mechanism;in terms of rights relief and protection,it is discussed from three perspectives: the unblocking of administrative reconsideration channels,the improvement of the administrative litigation relief system,and the national compensation system update.