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The fuel gas management permission system, is this year on March 1, the town gas management regulations established an important legal system. Gas franchise system of legal basis, is 2004 years the original construction is the first-class do sacrifice the municipal public utilities concessionary management method ". The fuel gas management permission system and gas franchise system and the relationship between the applicable law in China in recent years, is gas field of management to be solved by a prominent problem.
The fuel gas undertakings in our country, and heat supply, water supply, water drainage and wastewater treatment, urban public transportation, the botanical garden afforestation, garbage collection and processing, road, bridge, the traditional public utilities, compared with its unique features, that is, "in two". Both natural gas monopoly of the industry, also have free competition of bottled gas market. The natural monopoly of the pipe gas industry, more than original government investment and construction is given priority to, but with the franchise implementation of the system, gradually realize the diversification of investment, through the introduction of competition mechanism, the market operation and more regulations. Free competition of bottled gas market, through the guidance of national policy, encourage social capital investment operation, in recent years, under the supervision of the government in promoting the marketization reform and effective.
The fuel gas management permission system and gas franchise system, as the fuel gas management the field of two basic system, they both a connection between, also have cross, fusion, also are different. Mainly in the following aspects:
About the value orientation of system design
The fuel gas management permission system, it is the fuel gas management of a basic law system, it is the government according to law, strengthen the management of gas a beforehand control method, is to get the right to enter the market applicants granted. Its more emphasis on the government regulatory and legal regulation.
Gas franchise system, it is the fuel gas management the field of system innovation, is through the agreement gives enterprise franchising legal basis, is gas field investment system and an important reform of the management system. The more stressed is economic regulation and market oversight.
About the system function and characteristic
The fuel gas management permission function, main is allocating resources and control risk. Gas business license, belong to the administrative license law of "the limited natural resource development and utilization, public resource allocation and direct the public interests of the particular industry market access" class "licensed". Mainly by administrative organs in accordance with the on behalf of the state to sell, transfer certain rights, is the empowerment administrative licensing. The main function is to allocate available resources. Main features: one is a limit, and once granted that same area is exclusive, gas pipes may not be repeated promises right; 2 it is administrative authority has discretion, but should be strictly restricted by the program, in case the power rent-seeking; 3 it is the applicant for permission, such as public obligation to provide universal service obligations without authorization, stop gas supply, etc. Bottled gas business license, belong to the administrative license law in the "relevant public security and directly related to direct relationship between personal health, life and property safety" kind of "ordinary license". The main function is to prevent dangerous, guarantee the safety. Main features: one is forbidden to remove; 2 it is no limit; Three is administrative organ no discretion, accord with a condition that is shall permission.
Gas franchise, main function is through the market competition mechanism, constructors, investors choose gas operators and managers. Main features: one is generally limited to pipe gas monopoly has in the nets lost business, this is due to the limited space of municipal road by the formation of the natural monopoly of the right of the decision; routing The second is to realize the government target for the purpose, the government leading, namely "the government, through the agreement, make enterprise do"; 3 it is through the franchise agreement to establish the rights and obligations of both parties; Four is the preferred way through bidding process shall be subject to compulsory choice, tender, but can also can invite public bidding and tendering.
About the scope and adjust link
In the applicable scope, fuel gas business license system is mainly aimed at enterprise set, also is the request for gas operation permit subject in principle is the legal person subject qualification enterprise. No matter the enterprise is engaged in fuel gas management, pipeline application or bottled fuel gas business, for fuel gas business license system. The law is prohibits individuals in gas business; As for individual can engaged in fuel gas management, legislation bottled has authorized provinces, autonomous regions, municipalities directly under the central government for provisions. Gas franchise system suitable for government choose gas investors, operators and builders, of the situation, the operator typically restricted to pipe gas business field, the main body of the franchise for gas is only legal person subject qualification enterprise, individual may become a franchise of fuel gas bidders.
In the adjustment of the link, fuel gas business license system is only for fuel gas business links. Of course the fuel gas operators must be the fuel gas facilities operators; The fuel gas facilities operators only get gas business license, to be a gas operators. Gas franchise system applicable to gas investment, construction, operation and management, etc DuoGe link.
Need to point out that not all gas investment, construction, operation and management, and must be concessionary management. As to what projects for the franchise of provinces, autonomous regions and municipalities through legal form and program determined. If the concessionary management, shall follow the municipal utilities franchising management regulations.
About starting mechanism and approved subject, the basic process
From the approved subject terms, the fuel gas management permission for approval of the main body of the local people's government at or above the county level shall fuel gas management department. Gas to the franchise is approved by the government or government authorization subject relevant competent department.
From the start, the fuel gas management mechanism in terms of the applicant's application in accordance with permission, and launched; Gas franchise, in accordance with the tender documents and start out.
From the basic procedure look, gas operation permit procedures for application, accept and examine, hearing, decided to permit,; The fuel gas management permission in industry and commerce registration before, industry and commerce registration prior taxation registration. Gas franchise program for concessionary management: make sure the project, the government approval, issue a tender documents, accepts the bidding, the qualification examination for bidders and scheme, recommend candidates, intended to bid evaluation, choose according to qualification franchise granted person, public the bidding result, the approved the franchise agreement signed.
It should be pointed out that, for gas business license terms, gas pipes of the franchise has just meet the program, gas business license to limit requirements.
On approval conditions, acquisition modes and formal requirements
From the approved conditions look, fuel gas business license system and gas franchise system, an enterprise as a legal person subject qualification, facilities, enterprise credit, management solutions and post staff made clear the standard, based on this, the fuel gas management permission system is whether to conform to the fuel gas development planning, whether to meet the national standards and whether any fixed gas source of business place, put forward the concrete requirements. In the gas franchise system, the government can in pipe gas investment, construction, operation and management, etc DuoGe concessionary management link, but as long as it is on business link concessionary must conform to the fuel gas operation permit conditions, first of all get fuel gas business license.
From the way look, get gas business license, not necessarily all the way through bidding process. Gas business license, must through the way of bidding; Bottled gas business license, not necessarily through the bidding way, want to accord with legal conditions gave gas business license. The construction of the government investment, fuel gas facilities must be through public bidding mode choice gas operators. Social capital investment of the construction of fuel gas facilities, the investors to business, also can choose gas operators shall be separately. Gas franchise, must through the bidding of the way to get it. It should be pointed out that, in the fuel gas business license system after carrying out, the original has obtained the franchise, have the franchise agreement, no fuel gas business license of the enterprise shall, in accordance with law, gas pipes to the fuel gas management department to apply for fuel gas business license.
From the formal requirements in terms of fuel gas business license system, with gas business licenses for elements; Gas franchise system to the franchise agreement for requirement.
About power (the) properties and transfer
The fuel gas management permission from the quality of power, speaking, is a public resource allocation or market access, and belong to the administrative licensing of the "ordinary license" or "licensed". At present, the fuel gas business license is transfer ban.
Gas franchise, from right to speak, is in nature a kind of property rights, the nature of the civil rights with the nature of the real right must. The biggest characteristic is a government to franchise enterprise rights limit is limited to the real right, must rather than any other rights. According to the bidding law and the municipal utilities franchising management regulations, gas franchise transfer without authorization. Get to the franchise enterprise shall, in accordance with the charter, gas agreement fulfil obligation, shall not transfer the winning project, also may not be transferred, the winning project ZhiXie may, according to law, will the winning project of the subject, the key work, but not the subcontract again.
About time and continue
Fuel gas business license, the time limit for the legislation of the central level that have made specific provision. From the practice of all to pipe gas business license period normally for 5-10 years, bottled gas business license period normally for 2-5 years. The fuel gas management the licensee of the need to continue the fuel gas business license shall be in the period of validity of the 30 days prior to the expiration of the fuel gas management department to apply. The fuel gas management department shall, according to the licensee of the application, the administrative license in before expiration of the make a decision whether to allow continue decision; If no decision, as grant continue. The specific term and continue the way, by the local legislation.
Gas concession by the franchise agreement agreed, general is according to the characteristics of the gas industry, the scale, the mode of operation, the longest must not determined factors such as more than 30 years. The franchise expires, the departments concerned shall, in accordance with the statutory procedures organization, to choose tender gas a franchisee.
Need to point out is, gas business license deadline and the gas concession, should be prepared to effective connection.
About the mechanism of supervision and responsibility
The fuel gas management permission, according to "who permission, who supervision" principle, the fuel gas management exercise supervision department, belong to administrative supervision, with the nature of the government supervision, reflects the power and responsibility. For no gas business licenses and not according to the provisions of the operation license gas engaged in fuel gas business activities, shall bear the corresponding administrative penalty and criminal responsibility responsibility.
Gas franchise, according to "who charter, who supervision" principle, by the government or the relevant competent departments authorized by the government to exercise supervision, belongs to the contract supervision, has urged to perform its obligations under a contract, which is the nature of the rights and obligations. Not according to the fuel gas for the franchise agreement engaged in fuel gas business activities, shall be liable for breach of contract, and the corresponding civil liabilities.
In short, the gas industry, especially the public welfare, safety, monopoly with regional and local gas industry, should be market competition and the legal regulation of the organic integration. Leave the orderly market competition, moderate gas industry will lack of energy, and low efficiency; Without the necessary legal regulation, gas industry will appear foreword competition and excessive competition, and finally make it necessary to repeat construction and confusion of market. Therefore, the gas industry of the implementation of the laws and regulations shall be building, flexible market competition mechanism, it is necessary to make the competition more abound elastic system environment present the structure, so as to avoid the "a tube can die administrative order" and "a put is disorderly unwinding" dilemma. In this respect, the fuel gas franchise system and fuel gas business licensing system, provides the solution, and each other, bring out the best in each other by-election.
The fuel gas management field, especially the fuel gas management permission system and franchise systems, we still have a lot of theoretical and practical problems need to be solved urgently. For example: how to really realize all sectors of the main body in fuel gas business license system and gas franchise system are equal before? Get gas a franchise gas enterprise, whether must conform to the fuel gas management permission the legal conditions, and can get the fuel gas management permission? And so on. These all did not thinking, to be common to research, exploration and seek to seek the reality of the way to solve.