公私合作视野下的公租房制度研究

发布时间：2019-06-10 21:40

【摘要】：公租房制度与公私合作制(PPP)的结合并非偶然,基于现实上紧迫的住房保障需求,公私合作制已经进入了政治决策的视野中。然而公私合作制运用于公租房建设是否会按照既定的安排巧妙化解这一供需矛盾值得怀疑。通过对公租房制度的脉络观察可以发现公私合作制给公租房制度带来的有利态势的同时也带来了巨大冲击。在这一冲击下,对公私合作规制的要求呼之欲出,亟需检视现有制度之症结,并寻找到完善公租房制度的方法。公租房PPP模式与其他领域内的制度嵌入既有一定共性也有一定特性,在问题意识中需注意公租房领域的盈利面和准经营性特征,并尽量依据实在法规范探寻问题所在,发现我国公私合作制的立法不足以促成规制系统自洽运行并造成了行政和司法两个层面的规制缺陷:其一,公租房PPP模式存在行政规制缺陷的问题,主要包括缺乏规制协调组织、缺乏公众参与、行政规制事项不明等问题;其二,公租房PPP模式中租赁纠纷解决路径紊乱不明,现有制度无法为公私角色混同下的项目公司准确提供诉讼途径,更无法为承租人权利救济提供渠道。针对这两个层面的问题可以发现在公租房制度中推进公私合作制的规制路径,即以政府规制手段明晰公私权责分布、优化规制机制从而促进政府担保责任的履行,并在司法规制中通过辨析协议性质及协议具体安排以探寻公民救济渠道。当然这条规制路径也受到新行政法及公私合作制本身的影响,其不仅要求政府依法规制,还提出了合作治理等新的要求。因此在规制制度上需要创设独立的规制协调机构和多元主体参与平台,在具体的规制路径上,政府以"契约"为核心展开规制的实施显得较为可行和有效,可以提供更为灵活的规制手段,不仅能够弥补现有规范中权责事项规定不明的缺陷,且能体现出协商、共治的新理念,以缓和传统规制中对抗性关系,最终促成合作目的的实现。而对于公民在承租公租房时发生的权利损害,则需要司法机关通过对PPP协议性质的认定及具体安排的审查再做"公法契约"或"私法契约"之决定:"特许经营型"公私合作中,针对政府权力恣意行为法院可以在有限的幅度内承认公民基于特许经营协议中政府监督之条款而起诉的权利,针对私主体之侵权则需要法院运用"主体+行为"标准审查私主体的行为是否构成公法上的侵权。
[Abstract]:The combination of public rental housing system and public-private partnership (PPP) is not accidental. Based on the urgent demand for housing security in reality, public-private partnership system has entered the field of vision of political decision-making. However, whether the application of public-private partnership system in public rental housing construction will skillfully resolve this contradiction between supply and demand in accordance with the established arrangements is questionable. Through the observation of the context of the public rental housing system, we can find that the public-private partnership system not only brings the favorable situation of the public rental housing system, but also brings a great impact. Under this impact, the requirements of public-private partnership regulation are coming out, so it is urgent to examine the crux of the existing system and find ways to improve the public rental housing system. The PPP model of public rental housing has both certain commonness and certain characteristics with the system embedding in other fields. In the awareness of the problem, we should pay attention to the profit side and quasi-operating characteristics of the field of public rental housing, and try our best to explore the problem according to the norms of positive law. It is found that the legislation of public-private partnership system in China is not enough to promote the self-consistent operation of the regulatory system and cause administrative and judicial regulatory defects: first, the PPP model of public rental housing has the problem of administrative regulation defects. It mainly includes the lack of regulatory coordination organization, the lack of public participation, the lack of administrative regulation and other issues. Second, in the PPP model of public rental housing, the path of lease dispute resolution is unknown, and the existing system can not accurately provide litigation channels for project companies with mixed public and private roles, let alone provide channels for lessee rights relief. In view of these two levels of problems, we can find the regulatory path to promote the public-private partnership system in the public rental housing system, that is, to clarify the distribution of public and private rights and responsibilities by means of government regulation, and to optimize the regulation mechanism so as to promote the performance of government guarantee responsibility. And in the judicial regulation, through the discrimination of the nature of the agreement and the specific arrangement of the agreement to explore the channels of citizen relief. Of course, this regulatory path is also affected by the new administrative law and public-private partnership system itself, which not only requires the government to regulate according to law, but also puts forward new requirements such as cooperative governance. Therefore, it is necessary to create an independent regulatory coordination organization and a platform for the participation of multiple subjects in the regulatory system. In the specific regulatory path, it is more feasible and effective for the government to carry out the regulation with the "contract" as the core. It can provide more flexible means of regulation, which can not only make up for the defects of unclear provisions on the matters of power and responsibility in the existing norms, but also embody the new concept of consultation and co-governance, so as to ease the antagonistic relationship in traditional regulation. Finally, it will promote the realization of the purpose of cooperation. For the damage to the rights of citizens when renting public rental housing, It is necessary for the judicial organ to make the decision of "public law contract" or "private law contract" through the identification of the nature of PPP agreement and the examination of specific arrangements: in the "franchised" public-private partnership, Against the fact that the court of arbitrary conduct of government power may, to a limited extent, recognize the right of citizens to sue on the basis of the provisions of the franchise agreement under government supervision, In view of the infringement of the private subject, it is necessary for the court to use the standard of "subject behavior" to examine whether the act of the private subject constitutes a tort in public law.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.181

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