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Private law analysis of the administrative license

Author: WangZhiBin
Tutor: ZhangYuMin
School: Southwest University of Political Science
Course: Civil and Commercial Law
Keywords: Administrative Licensing Law University Press Concession Public resources Development and utilization of natural resources Administrative rules and regulations Property Taxi Usufructuary Legal Property
CLC: D923
Type: PhD thesis
Year: 2007
Downloads: 939
Quote: 14
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Abstract


This article first explores systematically many fundamental aspects of administrativefranchise. In the existing law, the administrative franchise means the license which is givenwith the particular rights about the market access to the particular industries which includethe development of limitted natrual resources, allocation of public resources and those arerelated to the public interests (Adminitrative License Law 12 section 2 article). Theadministrative franchise is one of the most important resources assign systems, it has threebasic functions: (a) allocate the limitted resources, avoid the "tragedy of public goods"; (b)allocat the limitted resources in a fair and square way, thereby safeguard the faircompetition of market economy and the legal rights and interests of the market body; (c)the franchise is protected by law even the owner of property can’t trespass on it. Theadministrative franchise has become more and more important in the system of socialismmarket economy. Contrast to the importance of the administrative franchise, the legislation、theoretics research and the practice of the administrative franchise has not been in awell—ordered way. Therefor, this article is researching the administrative franchisesystematically in the utilize of the principles from private law. The whole article is workingover the concept, object, function, quality and validity of administrative franchise, shapingthe theoretical frame of administrative franchise initially and making some legislationalsuggestions.The whole article is composed of 3 parts, 9 chapters except for the introduction.Chapter1 to in chapters 6 study three issues: (a) what kind of resources is needed allocateby the administrative franchise; (b) how to allocat the limitted resources in a fair and squareway; (c) the character of franchise. Chapter 7 uses the basic theories of administrativefranchise; it takes the power of management of taxi as the empirical analysis. Chapter 8 and9 expands to the whole field of administratie license, then it analyzes the systems inAdministrative License Law which are related to the private law, and making somelegislational suggestions.This article brings forward a series of difficult problems in the practice field ofadministrative franchise, also try to solve the problems. The conclusions of the article areinnovative and applied. The following each chapter is according to the order, first,summerize the main point of this chapter, and then introduce the innovations of theroy andsystem. INTRODUCTION is aimed to illustrate the purpose, importance and thinking ofthis research. First, summerize the meaning characteristic and function of administrativefranchise. Then, demonstrate the problems and harmness in the existing system ofadministrative franchise analyze the cause and point the necessity and the urgency ofanalyzing administrative franchise in private law. Finally, put forward the way to solve thisproblem on the basic of above.FIRST CHAPTER analyzes the concept of administrative franchise bycomparing with the civil license. Civil license is usually the property license, such as thelicense of patent and the franchise. The subject of cl is the equal civil objects so it can applythe principle of autonomy in private law. The basic of right of license is the individualproperty right, so it can be told from the al whose party is the state and the basic is theadministrative power. This article considers that administrative license includes two typeswhich are the license of property of right and the one of behavioral freedom. Theadministrative franchise is as the opposite concept of normal license, administrativefranchise is the summary of the content of "12th section, 2nd article" in the AdministrativeLicense Law as the introduction of concept and it means the license of transfering theproperty right as the concept of tool. Normal license is the one of behavioral freedom. Thischapter points out that the identity of the state is special, because it can only be the mainbody in public law, it can also be the civil subject. Whether it is the civil license or theproperty right license when the state makes the license based on the property right isdepend on whether the state-owned property is the private property and public property.This chapter accomplishes the idealizational typehood of administrative franchise. Ithelps to grasp essence of administrative franchise.THE SECOND CHAPTER analyzes the subject of administrative franchisethrough the controversy of state-owned public property. The property controlled bygovernment can be divided into the public property of government and private property ofgovernment according to thr different ways of using. The public property of government issupplied to the public and official business directly while the private property ofgovernment is using in that way indirectly. The theory of public property believes that theownership of public preoperty is non-assignable and is not bound by prescribtion. Thedualism is supported by this article. There are the monism and the dualism over the issueabout what law dominates the public property. The former one is represented the public law. The latter one is represented by German, and it adovates that the public property is appliedfor both public law and private law. This article agrees the dualism. The object ofadrninistrative franchise is the welfare public property for the special exclusive use. Objectof administrative franchise is the public property which is sreved for the public exclusively.The license which is based upon the private property from the government is called "CivilLicense", the one which is not uesd for the public until licensing of the manager of publicproperty is called "Normal License". The one which is based upon the exclusive use ofwelfare public property from government is called "administrative franchise".This chapter definites the state-owned natural resources as public property based on thefeatures and meaning of them. It uniforms the subject of administrative franchise anddiminishes the theoretic controversy which is made by the theory that state-owned naturalresources is private property in the premise of monism and the controdiction withadministrative theories.THE THIRD CHAPTER analyzes the function of administrative franchise,comparing with the IPR. Although IPR and administrative franchise are both themonopolistic using power which is set and given by state law directly, the object of IPR(intellectural product) is the pure public goods and has the positive external features. Itneeds the private property rights given by state to impulse the production and also therestrains of right in order to maintain the inherent attribute of public goods of IPR. Theobject of administrative franchise (the specific governmental public propertyt) is thequasi-public goods and it has the negtive external feature. It needs the allocation from stateto the rare resource and internalizes the external feature in the wan of definiting the privateproperty right. The process of application and register in IPR system is not theadministrative franchise but the administrative act to administrative franchisefirm the civilright. Then, it researches the sort of resource only has the problem of how to allocate, andthe systematic resource and how to allocate this resource if there is so and puts forward theview that the settle of administrative franchise should be restrained and how to restrain.This chapter confines the definition of limited public resource firstly; it helps to make aclear distinction of the bound of administrative franchise. It deems there are definitions onsensu lato and sense stricto. In latter one, it means the artificial welfare public propertyexcept for the natural resources. In former one, it means the administrative franchise itselfwith quantitive limitation which is based on the artificial shared public property and marketaccess oppotunity of monopolized industry. This chapter mentions that the difference between administrative franchise and the normal license with quantitive limitation is basedon whether it establishes on the specific public property.THE FOURTH CHAPTERA analyzes the struture of administrative franchise byexamining contract relationship. Because the administrative franchise has two stageslegal structures. 1, the country permits the relative parts to use the specific resource as thepublic manager. 2, the country transfers the property right to licensee as the owner ofresources. To improve the system of granting administrative franchise is supposed toenhance the utilization of private ways, and to confirm the civil consensus and register asthe necessary process, except the administrative agencies should make decisions in way offair competitions, such as biding and auction to the franchise according to theAdministrative License Law.This Chapter suggests that it should be built up the uniform system of granting theadministrative franchise firstly. Administrative License Law should regulate to this.Nowadays, the existing legislation should be modified according to the fair competitionprocess in Administrative License Law.THE FIFTH CHAPTER analyzes the charater of administrative franchise inthe language situation of public right and private right. This article deems that theproperty right is right which has the economic value. And the property right is composed ofthe one in public law and the one in private law and is given the validity on private law, butthe right which is based on the public law is not totally the public fight. If the right isgranted by the private law, it is a private right. Obtaining the administrative franchisemeans obtaining the right to explore and utilize and the right to manage, so it is a rightwhich has the substantial content of exemplifies the economic interest directly namely theproperty right. By examining the contents and related theories of the franchise ofgovernment, it deems that the grant of franchise has the dualism in administrative and civillaw. But the, content of right is private right. Furthermore, it burdens some responsibilitieson public law in obtaining, remising and exercising because it has the relationship withpublic interests. So it has the feature of public right.This article seems the alienability of administrative franchise is based on the facts thatit focuses on the conditons of exploring and utilization and it does not have the individualcharacters. It is suit for the wan of tendering and auction. Some related legislation are notsuit for this principle, so they should be modified. THE SIXTH CHAPTER analyzes the status of the franchise while it has ite settingof dualistic structure of ReaIRight and the Obligation Right. The tradional propertyright system of civil law system has the dualistic structure: the realright and the obligationright, the ownership and jus in re aliena. The object of natural resource franchise is thegoods which is belonged to others and has the specificity. So it should be the right ofbeneficial use rather that the quasi-ownership. The franchise with object of right. Franchiseshould be the quai in rein by method of systematize the right of pledge in right as quasiright of pledge and the right to mortgage in right as quasi right to mortgage. In the tide ofappeasing the legalism of Jus in Re, the franchise has the feature as the realright of usufruct.And it is the fundamental realright. So it is important to carry out the principle of legality ofright. At the same time, the development of modern public anoucement system is quitesupportive to the process in which the obligation rights raise to ownership right. But the lawwhich is from the legalism of Jus in Re should expand to the field of administrativeregulations and the local regulations on the condition that the Realright Law confirms thevarious natural resource franchise realright and make the inclusive section. Regulate the resincorporales to apply the Realright Law whise object is right in the operation of RealrightLaw.This chapter reconsiders the system of tradional property right system, and confirmsthe object of natural resource franchise as the realright the right of. beneficial use, thefranchise whose object is fight as the quai in rem. This chapter also points out that the lawwhich is from the legalism of Jus in Re should expand to the field of administrativeregulations and the local regulations on the condition that the Realright Law makes theinclusive section on franchise.THE SEVENTH CHAPTER analyzes the operational license of taxi based on thefundamental theories of administrative franchise. It is necessary for the government toimplement the quantity control on taxies. The right of operating taxi is a kind of limitedpublic resource which is governed by government due to the quantity control. Byfranchising the subject of operating taxi, the pattern of controlling the main body which isran by subordinate cars, must derive some controverisies and weakpoints such as the unfairallocation of society and the disjointedness between license and social demands because ofthe unproper application of the normal license system (namely granting the non-deadlinelicense due to the pinciple of prior application and forbiding the transference). According to the basic principle of administrative franchise, the allocation of the operational licenseshould through the pattern of cars control, namely granting the license with date restraint inmethod of some paid competitional ways such as tendering, auction and peimitting totransfer the operation license of taxi.This chapter analyzes and thinks about the internal reasons of controversies which isaroused in the management of taxies in Beijing in the view of the manage mold of taxies inbase of the basic priciples in administrative franchise. Then it arises some revolutionarysuggestions.THE EIGHTH CHAPTER analyzes the systematic innovation and legislationshortcomings in the view of private law. Hearing proceeding, auction bidding for gheissuance of licenses, and reliability protection are three system innovations ofAdministrative License Law. The hearing proceeding provides the systematic medium ofcommunication to the optimistic interactive action between the administrative power andthe citizens’ right. At the same time, there are some problems about leaving out manyimportant facts in the regulation of the hearing process in the license law. It is useful toprevent the black case work in order to abusing of power for personal gains and it optimizesthe resource allocation in order to solve the asymmetry of supervisional information.However, the problem is that the way of franchised allocation is oversingle, the area offranchise is not clear, the condition of frachise is unproper. Administrative License Lawthese will influence the implement of impartial, widen the field of franchise in unproperway and make new monopoly artificially. The reliability protection gives the administrativelicense the attribution of property right. But the Administrative License Law set that thelicense is forbidded to transfer in principle. Its traditional view continues on administrativeallocation of license. What’s more, the profitable compensation still has some problemssuch as the legal basis is not clear, the process, area and standard of compensation areunknown. These drawbacks in the legislation must increase the problem of confusions inpractice and legal enforcement.THE NINTH CHAPTER brings forward some legislational suggestions on thebase of innovations of theories and systems in aforesaid chapters. The perfectadministrative franchise should have the normal legal standard, and can allocate resourceseffectively. Our country should establish the system of administrative franchise which iscompatible of public and private law. It is the dualism on the object which should adapt both public and private law, it is the way to apply both methods in public and private law,and it is the system which is built up to make the public and private law compatible in rightguarantee. Then this chapter brings forward some legislational suggestions on RealrightLaw. Administrative License Law and the ones related to the natural resource protectionand public business.This article studys the administrative franchise innovatively, roundly and systemiclyfrom the perspective of private law. The whole article is working over the concept, object,function, quality and validity of administrative franchise, shaping the theoretical frame ofadministrative franchise initially and making some legislational suggestions. It not onlyenrichs and improves the theories in administrative law and civil law, and has a huge realsignificance.The innovations in theories and systems of this article are: (a) on the concept ofadministrative franchise, it confirms administrative franchise as the license of transferingthe property right, accomplishes the idealizational typehood of administrative franchise. (b)on the bound of administrative franchise, it confines the definition of limited publicresource and the difference between administrative franchise and the normal license withquantitive limitation firstly. (c)on the object of administrative franchiseI, it points out that onthe object of which should adapt both public and private law, on this condition it definitesthe state-owned natural resources as public property based on the features and meaning ofthem. (d)on the way of issuing of licence, it suggests that it should be built up the uniformsystem of granting the administrative franchise firstly. Nowadays, the existing legislationshould be modified according to the fair competition process in Administrative LicenseLaw. (e)on the the charater of administrative, it reconsiders the system of tradional propertyright system, and confirms the object of natural resource franchise as the realright the rightof beneficial use, the franchise whose object is right as the quai in rem. And it points outthat the law which is from the legalism of Jus in Re should expand to the field ofadministrative regulations and the local regulations on the condition that the Realright Lawmakes the inclusive section on franchise. And it also points out that the standard ofcompensation for the administrative franchise shoud be consummated under the RealrightLaw. All these innovations are important to complete related laws and provide the guide forpractice in the area of administrative franchise.

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