State Compensation on Cases of Private Participation in Public Infrastructure－An Analysis on Article 3-1 of The State Compensation Law

• Main Authors: Chii-Shyang Hwang, 黃啟翔
• Other Authors: Chun-Yuan Lin
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/be3f87

碩士 === 中原大學 === 財經法律研究所 === 103 === Abstract As the principles of welfare state has established in the constitution, the country has a mission to do its best to accomplish the social justice and security, thereby forming all kinds of people need, including basic needs of living (in respect of water, electric, transportation, energy source, etc.), the welfare tasks like obligatory social insurance with its relative welfare administration. So, the development of a “Welfare State” is absolutely the country image what the constitutional principle of welfare state supports and symbolizes. However, when facing the gradually complicated social life and the expansion of the life of care due to better living quality people pursue, the country, under the limited financial capability, shall commit the responsibility of “welfare” to third party to share the task. For this reason, the privatization of administrative task becomes the administrative reform method to reduce the administrative task, downsizing the personnel, save the government expenditure and improve the quality and the efficiency of public service in the modern country. The public works become an important step of national welfare because it is not only the target of the development of national economy but also part of people needs. The Act for “Private Participation in Infrastructure Projects” is the act that developed from the trend of the privatization of administrative task, not only is the solution of the burden of Government Revenues and expenditure, the business opportunity for local enterprises but improve the quality and the efficiency of public work service and merely become the multi-win situation amount the “Nation”-“Enterprise”-“People, (or “two-side relationship” between Nation and People.) Having Private Participation in Infrastructure Projects as the change of welfare administration field makes quit an impact and challenge on the traditional public law and its policy. It investigates and solves the problems caused by the administrative law due to the Public-Private Partnership. However, we are not sure that whether or not the Item 1 of Article 3 of National Compensation Law is qualified to “people constructing or operating public works for the civil utilization is not safe or ill management that damages or violates the civil life, body health or wealth. In a word, the broadly speaking of the people participating public works is the system that investigates whether or not the nation shall move the right of operation management of the people's livelihood construction to local government (enterprise). Only that more broadly speaking of “government-owned” in the Item 1 of Article 3 of State Compensation Law under the theory and practice in our country is the devices that provide for public or official use. In fact, the Article 3 of State Compensation Law fit in with the device either under the operation of the government or local government, thereby some types formulated in the Article 8 of the Act for Promotion of Private Participation in Infrastructure Projects, no matter it’s “local constructing and operating” or “government constructing, local operating,” all means “local management” and what the government shall do here is guaranteeing. Under the operation of these two patterns, if the people participating public works is ill management, it is not qualified for the general and practical definitions of the “government-owned” said in the Article 3-1 of State Compensation Law. For that matter, we doubt whether or not State Compensation Law can be applied to such institution. Although the people participating public works is widely used nowadays, how scholars comprehend the “government-owned” is different so there is no compatible views for the theory about whether or not the “product liability” formulated in the Article 3 of State Compensation Law can be applied to the unsaved and ill managed people participating public work, and the government does not pass the relative amended draft as well. The main core investigation for the relevant policy of privatization in legal science and practice shall start from the concept of privatization in “pre-privatization” stage, the admissibility of constitution towards to privatization, the setup of privatization procedure, etc. and then gradually move to the problems of post-privatization, that is to say, the redistribution of the government compensation liability in the nation and society after administrative Tasks privatization. To do so, we can establish the complete institution instructions for Right-relief system.