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深圳市公用事业特许经营办法 Measures of Shenzhen Municipality on management of Public Utilities under Franchise Chapter I General Provisions

2006-05-13 09:13   我要纠错 | 打印 | 收藏 | | |

深圳市人民政府令第124号

颁布日期:20030321  实施日期:20030501  颁布单位:深圳市人民政府

  Article 1 In order to improve the efficiency and quality of public service, protect public interests and the lawful rights and interests of franchisees, promote the development of public services, these measures are hereby formulated.

  Article 2 In these measures, “management of public utilities under franchise” means the Municipal Government specially authorize those enterprises or other institutions which meet requirements, within a certain period of time and a certain area, to manage a certain kind of public service.

  Article 3 The government encourages social funds, overseas capital to establish public utilities and engage in the operation of public service franchise, through the forms of exclusively investment, joint venture and cooperation.

  Article 4 The management of public utilities under franchise shall protect public interests from infringement in priority. A franchisee shall ensure the continuance, safety, high quality, high efficiency, equity and reasonable price of the universal service.

  A franchisee may gain reasonable benefits through lawful operation and shall bear corresponding business risks.

  Article 5 The government and franchisees shall establish public participation mechanism through which encourage the public to supervise the public service.

  Article 6 The supervision department of public services (hereinafter referred to as the “Supervision Department”) is in charge of the supervision over management of public service under franchise, while other governmental departments perform supervision functions according to their respective official duties.

  Chapter II Management Right under Franchise

  Article 7 The subject to authorize the management right of public service under franchise shall be the Municipal Government or it′s authorized Supervision Department .

  Article 8 The subject of authorization may, through invitation to bid, invitation for subscription or other manners specified by laws, regulations and rules, grant the management right of a certain public service under franchise via issuance of Certification of Management Right of Public Service under Franchise of Shenzhen Municipality (hereinafter referred to as the “certification”) to the qualified applicant. The specific requirements shall be specified by the documents of invitation to bid and the letter of invitation for subscription.

  In the case of applying for management right of public service under franchise, an applicant shall make commitments on such matters as the ownership and disposal of the public utilities, the transfer of stock rights, the relevance liabilities in the operation of the public service and other business.

  Article 9 The procedures stipulated in the national Law of Invitation to Bid and Bidding shall be applicable in case the management right under franchise being granted through invitation to bid. The specific measures shall be determined by the announcement and documents of invitation to bid.

  Article 10 In these measures, invitation for subscription means that after the announcement of the public services to be franchised, the subject of authorization or its agency invites those applicants, through prudent investigation and negotiation, determining candidates list which will be submitted to the assessment commission for preferential negotiation, and then determines the party to be granted the management right under franchise in the end.

  Article 11 The certification shall be recorded the following matters:

  (1) The authorizing party and the authorized party;

  (2) The content, region and time limit of the management right under franchise;

  (3) The ownership and disposal of the public utilities;

  (4) The retrieve of management right under franchise;

  (5) The obligations and liabilities of the franchisee;

  The obligations and duties of the franchisee as specified in the preceding paragraph shall include:

  (1) abiding by laws, regulations and rules;

  (2) standard and requirements for public service;

  (3) maintenance and establishment of public utilities;

  (4) acceptance supervision, temporary take-over or other administration implemented by the Supervision Authority according to laws, regulations and rules;

  (5) acceptance supervision by the public;

  (6) making or adjusting price according to laws, regulations and rules;

  (7) other obligations and liabilities.

  Article 12 The certification is the legal basis for a franchisee to carry out business under franchise, whose scope shall not exceed the provisions of the certification.

  Anyone shall not undertake the business of franchise of public service before obtaining the certification.

  Article 13 The government may, according to the characters of different public services, reduce or exempt franchise fees.

  Article 14 A franchisee shall be prohibited to dispose the management right under franchise through such means as transfer, lease or pledge.

  Article 15 Any management right under franchise shall be terminated upon expiration of the franchise period. In the case of applying for extension of franchise period, a franchisee shall, within the stipulated time limit before the expiration of the management right under franchise, apply for such extension. The franchise period may be extended in case the subject of authorization, through examination, considers the franchisee meet the requirements for extension. However the extension of franchise period shall not exceed two times.

  The time limit as specified in the preceding paragraph shall be determined by the annex of these measures.

  Article 16 In case a franchisee falls into the following circumstances, the subject of authorization shall retrieve the management right under franchise:

  (1) Disposing management right under franchise through the means such as transfer, lease or pledge;

  (2) Failing to meet the requirements for being granted management right under franchise due to transfer of corporate stock right;

  (3) Falling short of standards and requirements for providing public products or public services, which seriously affects public interests;

  (4) Causing major safety accident due to mismanagement, which seriously affects public interests;

  (5) Financial position deteriorating seriously due to mismanagement, which endangers public services;

  (6) Failing to invest or establish public utilities according to city planning and rejecting to make correction after being ordered to make correction within time limit by the Supervision Authority;

  (7) Suspending of shutting up the business without authorization;

  (8) Breaking commitments made when it was applying for the management right under franchise;

  (9) Other circumstances as stipulated by laws, regulations and rules.

  Article 17 The decision of retrieve of management right under franchise shall be noticed to the franchisee in writing by the subject of authorization. The franchisee may bring forward a written plea or demand a hearing within 30 working days upon receiving the aforesaid written notice. The subject of authorization shall organize a hearing in case the franchisee demands it.

  Article 18 In case the public service is unable to be carried out due to force majeure event during the period of franchise, after being approved by the subject of authorization of the application which motivated by the franchisee, the management right under franchise may be terminated ahead of schedule……

  Article 19 The original franchisee shall, after the management right under franchise being retrieved or terminated, hand over the essential assets and files for keeping the operation of the franchised business within the time limit set by the subject of authorization, to the unit designated by the subject of authorization.

  Article 20 After the management right under franchise being retrieved or terminated, the government shall pay reasonable compensation for the part of the net value of the fixed assets which invested by the original franchisee to maintain the normal operation of the business under franchise.

  Where the management right under franchise is retrieved according to Article 16 of these measures, the original franchisee shall pay compensation for the expense payout by the government for re-granting management right under franchise and handing over operation.

  Article 21 After the management right under franchise being retrieved or terminated ,and before the completion of taking over by a designated unit, the franchisee shall perform the duty of guard with goodwill and keep the normal operation.

  Chapter III Public Utilities

  Article 22 The government, who is the owner of the public utilities invested by it, may deliver those utilities to a franchisee through the means such as lease, etc……

  A franchisee shall build new public utilities according to city planning. After the management right under franchise being retrieved or terminated, such utilities shall be handed over to the government according to its commitment. However the government shall pay reasonable compensation for the investor in case it is required by these measures or a prior agreement.

  Article 23 A franchisee shall allow other operators to connect its public utilities according to planning. The rules on price administration shall be applicable to determine the fees result from the connection.

  Article 24 In case it is necessary to access to some sections or buildings for establishing or maintaining public utilities, the franchisee shall consult with the owner, while the owner and relevant personnel shall make things convenient for the franchisee.

  Article 25 The maintenance of public utilities shall abide by relevant rules on administration of road and virescence, while the setting of a site or stop and alteration of a pipe or route shall be subordinated to the general plan of the Municipal Planning Authority. In case it is necessary to make rush repairs, the franchisee may make the urgent repairs, notify relevant authority simultaneously, and handle relevant procedures after the event.

  Article 26 A franchisee shall overhaul and maintain the situation and performance of the public utilities periodically and report the performance situation to the Supervision Authority on schedule.

  Article 27 A franchisee shall collect, classify, settle and pigeonhole such materials as drawings, etc. of all of the public utilities, improve the information administration system of the public utilities and connect to the governmental net.

  Article 28 The government may requisition the public utilities for public interest. A franchisee shall offer cooperation while the government shall pay reasonable compensation for the investor.

  Chapter IV Price

  Article 29 The Price Authority of the Municipal Government together with the Supervision Authority shall take charge in the fixing or adjustment of price for public service.

  Article 30 The principles for fixing prices of public service shall include: compensatory cost, payable tax according to law, reasonable gains, saving resource, promoting development and bearing capability of the society.

  Article 31 The price of public service is composed of costs, taxation and profits.

  The cost is the average cost of the society, includes all producing cost and course expenditures which shall be reckoned in the price.

  The benefit is the reasonable income of a franchisee. Based on the characters of different business, the benefit shall be appraised and decided according to the yield of net assets or net-worth of fixed assets respectively.

  Article 32 The cost shall be appraised and decided by the following measures:

  (1) The purchasing price of raw and processed materials, adjective materials and fixed assets, shall be appraised and decided according to the regulated price in the case of governmental pricing; while in the case of market-oriented pricing, the purchasing price shall be appraised and decided according to average market price at the time of purchasing, where the purchasing price is lower than the average market price, purchasing price shall depend on the actual purchasing price.

  (2) Expenditures of wage, sale and management, which are subject to proportion control of amount, shall be appraised and decided according to the total amount of those expenditures in proportion to the amount of the total costs of the same trade or similar enterprises in the recent three years with a reference to the social average level of the municipality.

  (3) The depreciated fixed assets shall be the assets relevant to the provision of products or services of public service, but those public utilities owned by the government are precluded. Those fixed assets left unused for more than 9 months shall not be allowed to depreciate, until after resuming to be used for more than 3 months may be allowed to depreciate. The period of depreciation shall be determined by the Financial Authority, Price Authority, relevant Supervision Authority and franchisees according to the rule of reason.

  Article 33 The Price Authority shall establish periodical price auditing system and database of costs information to form effective cost restriction mechanism. For the purpose of ensuring the authenticity and veracity of the cost for price, the making or altering of cost for price shall be audited by a competent auditing institution if it is necessary.

  Article 34 In the presence of the Supervision Authority, the Price Authority shall specifically determine the means of appraisal and decision of yield of different trade, which shall be recorded in the annex of these measures. The scheme of the yield shall be brought forward by the aforesaid authorities according to the factors such as the average margin of the society, banking interest rate and price index, and then submitted to the Municipal Government for confirmation.

  The Price Authority in the presence of the Supervision Authority shall check the yield each year and adjust it when necessary.

  Article 35 The procedures for fixing and adjusting prices of public service shall be as the follows:

  (1) The franchisees, the public service supervisory committee, the consumer organization, the trade association or the Supervision Authority may file a written application to the Price Authority for fixing or adjusting prices, while the Price Authority who has the right of fixing price or other relevant authority may bring forward scheme for fixing and adjusting prices according to relevant price rules and then the Price Authority shall organize a testimonial session.

  (2) The Price Authority shall initially examine and verify the integrality of the application materials upon receiving a written application, and in case there are some materials absent, the Price Authority shall demand the applicant to submit other necessary material within time limit. In case the application meets the requirements for a hearing, the Price Authority shall make decision on organizing a hearing within 15 days upon accepting the application and harmonize with relevant authority for the prophase work for the hearing;

  (3) The Price Authority shall hold the hearing within 3 months upon making the decision on organizing of the hearing and service the letter of appointment and materials for the hearing to the representatives of the hearing. The hearing shall be held with the presence of more than two third of the aforesaid representatives;

  (4) In the presence of the Supervision Authority, the Price Authority shall fully consider the opinions brought forward by the hearing when studying out a price scheme, which shall be submitted for examination according to their respective purview. The summary, notes and materials of the hearing shall be simultaneously submitted when submitting for examination;

  (5) The price scheme, after being approved, shall be announced to the public and operators through the governmental website and other medias and shall be organized for implementation.

  Article 36 For the purpose of insuring relatively stabilization of public service price, reserve fund for price adjustment, which will be special used to regulate and control the public service price and profit, may be set up according to characters of different public services. Such specific measures shall be formulated separately.

  Article 37 A franchisee shall carry out the rules on price supervision and price standard regulated by the government.

  Chapter V Supervision

  Article 38 The supervision authority shall perform the following functions to implement the supervision over the franchisees:

  (1) taking charge in the organization of invitation to bid and invitation for subscription for management right under franchise of public service;

  (2) formulating evaluation standard for quality of products and services;

  (3) supervising franchisees to perform legal obligations;

  (4) accepting the complaint against franchisees brought by the public;

  (5) investigating and prosecuting illegal acts of franchisees;

  (6) bringing forward opinions and advices and supervising on the five-year-business-plan and annual business plan of franchisees;

  (7) supervising and examining the quality of products and services provided by franchisees;

  (8) assisting the Price Authority to fix and adjust price, appraise and decided, supervise and control over costs and expenditures;

  (9) examining the annual report of franchisees;

  (10) submitting the annual supervision report on franchisees to the Municipal Government;

  (11) temporary taking over public services in emergency;

  (12) other obligations as stipulated by laws, regulations and rules.

  A franchisee shall submit its five-year-business-plan, annual business plan, annual report, matters on alteration of such chief officials as directorate and management group, and decision of directorate to the Supervision Authority for record or examination at the time stipulated by the annex of these measures or other agreement.

  Article 39 The Supervision Authority shall implement the following supervisions over franchisees:

  (1) whether the quality of products or services are up to the mustard;

  (2) whether it has achieved the degree of satisfaction which regulated by the trade association;

  (3) whether the annual and 5-year business strategy and investment project have been submitted for record and implemented;

  (4) whether its business and financial situation are well off;

  (5) whether its commitment has been fulfilled;

  (6) whether it has carried out the price rules;

  (7) whether the alteration of such chief officials as directorate and management group, and decision of directorate have been submitted for recording;

  (8) other matters as specified by laws, regulations and rules.

  Article 40 A public service supervisory committee shall be set up to take charge in collection opinion of the public and franchisees, bring forward advice on legislation and supervision and represent the public to carry out supervision over public service franchise.

  Chapter VI Legal Liabilities

  Article 41 In violation of Article 23, Article 26 and Article 27 of these measures, a franchisee shall be ordered to make correction within time limit and be imposed a fine of no less than RMB 50,000 but no more than RMB 500,000 by the Supervision Authority.

  In violation of Article 12, Article 14, Article 19, Article 21 and Paragraph 2 of Article 22, a franchisee shall be ordered to make correction within time limit and be imposed a fine of no less than RMB 500,000 but no more than RMB 1,000,000 by the Supervision Authority.

  In violation of Article 37 of these measures, a franchisee shall be punished by the Price Authority.

  Article 42 A franchisee may apply for an administrative review or file an administrative litigation in case it refuses to comply with the decision of punishment made by the Supervision Authority.

  Article 43 In case the staffs of the Supervision Authority misuse of their authority, commit irregularities for favoritism, neglect duties, ask for bribes and take bribes, they shall be given administrative sanction according to law, and shall be prosecuted for criminal liability in case it constitutes a crime.

  Chapter VII Supplementary Provisions

  Article 44 The subject of authorization may directly grant the certification for the enterprise or institution who has acquired a management right under franchise on public service. However the commitment as stipulated in the Paragraph 2 of Article 8 of these measures shall not be exempted.

  Article 45 The annex of these measures includes specific rules on franchise of public service. The annex may be promulgated with these measures or separately.

  The supervision authority may formulate specific administrative rules according to these measures and their annex, or conclude an agreement on other matters.

  Article 46 These measures shall take effect as of May 1, 2003.

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