论政府购买公共服务的保证责任

政府购买公共服务是公私协力的表现,是担保国家理论在行政法中的具体化。透过担保国家理论、公私协力背景分析政府购买公共服务的行政法属性,政府保证责任作为政府购买公共服务的责任转型,有其宪法渊源与民事责任阙如的现实需求。基于保障社会公众以合理的价格持续、均等地获得质高价优的公共服务之目的,政府保证责任可以类型化为监督责任、管制责任、接管责任,其内容体现为保证有限竞争、质量与价格供给、持续与均等供给以及公共服务的信息公开与公众参与。可以通过行政规制、契约治理及信用监管等措施,促进政府保证责任的最终实现。

On the Guarantee Responsibility of the Government in Procurement of Public Services

The government’s purchase of public services is a manifestation of public-private partnership, which is a concrete realization of the guarantee state theory in administrative law. Through the analysis of the administrative law attributes of government purchase of public services in the context of the guarantee state theory and public-private partnership, the government’s liability as the transformation of government purchase of public services has its constitutional origin and the practical needs of the civil liability gap. Based on the purpose of guaranteeing the public’s continuous and equal access to high quality and high price public services at reasonable prices, the government’s liability can be typified as supervisory liability, regulatory liability, and take-over liability, and its content is reflected in the guarantee of limited competition, quality and price supply, continuous and equal supply, and information disclosure and public participation of public services. Through administrative regulation, contractual governance and credit supervision, the ultimate realization of the government’s responsibility can be promoted.