China News Service, April 8. According to the WeChat public account of the National Development and Reform Commission on the 8th, the National Development and Reform Commission and six other departments announced the revised "Infrastructure and Utility Franchise Management Measures" (hereinafter referred to as the "Measures"). Effective from May 1, 2024. The measures point out that private enterprises are encouraged to actively participate in franchise projects through direct investment or sole proprietorship, holding, equity participation, etc. The implementing agency shall determine the specific ways for private enterprises to participate based on the list of new, renovated and expanded franchise projects formulated by the development and reform department of the State Council to support the participation of private enterprises and based on the actual situation of the project.
The full text of the method is as follows:
Measures for the Administration of Franchising of Infrastructure and Utilities
Chapter 1 General Provisions
Article 1 is to encourage and guide social capital to participate in the construction and operation of infrastructure and public utilities, improve the quality and efficiency of public services, protect the legitimate rights and interests of franchisees, stimulate the vitality of private investment, protect social public interests and public safety, and promote the sustained health of the economy and society develop and formulate these measures.
Article 2 These Measures shall apply to franchise activities in the fields of transportation, municipal engineering, ecological protection, environmental governance, water conservancy, energy, sports, tourism and other infrastructure and public utilities within the territory of the People's Republic of China.
Article 3 The term "infrastructure and public utility franchising" as mentioned in these Measures refers to the government using open competition to select legal persons or other organizations within and outside the People's Republic of China as franchisees in accordance with the law, and through agreements to clarify rights and obligations and risk sharing, and to stipulate their rights and obligations and risk sharing. Invest in the construction and operation of infrastructure and public utilities within a certain period and scope and obtain profits to provide public products or public services.
Commercial franchising, as well as public construction and private operation, public and private operation, etc. that do not involve the transfer of property rights, do not belong to the infrastructure and public utility franchising referred to in these Measures.
Article 4 Infrastructure and public utility franchises are based on a user-pays government-private partnership (PPP) model. The government cooperates with social capital on project investment, construction and operation, and no new administrative licenses are required.
The franchisee obtains the exclusive right to invest, construct and operate specific infrastructure and public utility projects and obtain profits within the period specified in the agreement. At the same time, the franchisee shall provide public products or public services that meet quality and efficiency requirements in accordance with the agreement, and accept supervision and management in accordance with the law. The government encourages and supports franchisees to improve efficiency, reduce costs, and enhance public welfare. It is prohibited to add administrative licensing items without legal basis and to charge franchisees through the aforementioned unauthorized addition of administrative licensing items to increase the cost of public products or public services. . It is prohibited to abuse administrative power to exclude or restrict competition in the name of infrastructure and public utility franchises.
Article 5 Infrastructure and public utility franchises shall adhere to openness, fairness and impartiality, protect the trust and interests of all parties, and adhere to the following principles:
(1) Give full play to the advantages of social capital financing, expertise, technology and management to improve the quality and efficiency of public services;
(2) Transform government functions and strengthen consultation and cooperation between government and social capital;
(3) Protect the legitimate rights and interests of social capital and ensure the continuity and stability of the franchise;
(4) Take into account the balance between business and public welfare and safeguard public interests;
(5) According to the nature of the risk and the risk management and control capabilities of the franchise parties, the risk sharing mechanism shall be clarified and implemented effectively to ensure the continued and stable implementation of the project.
Article 6 Infrastructure and public utility franchises should focus on user-pay projects and clarify charging channels and methods. Project operating income must be able to cover construction investment and operating costs and obtain a certain return on investment. No additional new projects will be added due to franchising. Local fiscal responsibility for future expenditures.
The term “user charges” as mentioned in the preceding paragraph includes charges directly charged by franchisees to users, as well as charges charged to users by the government or its legally authorized agencies on their behalf.
Article 7 Infrastructure and utility concessions may take the following forms:
(1) Within a certain period of time, the government authorizes concessionaires to invest in new construction, renovation, expansion, and operation of infrastructure and public utilities, and the concessions will be handed over to the government when the period expires;
(2) Within a certain period of time, the government grants concessionaires the right to invest in new construction, renovation, expansion, ownership and operation of infrastructure and public utilities, and hand them over to the government when the period expires;
(3) Within a certain period of time, the government will transfer completed infrastructure and public utility projects to concessionaires for operation, and transfer them to the government when the period expires;
(4) Other methods prescribed by the state.
It is prohibited to directly hand over the project to the government after the construction project is completed, or to evade operational obligations in disguise by terminating the agreement in advance.
Article 8 The franchise period of infrastructure and public utilities shall be determined based on comprehensive factors such as industry characteristics, demand for public products or services provided, project life cycle, project construction investment and operating costs, investment recovery period, etc., to fully protect the legitimate rights and interests of franchisees .
In principle, the franchise period shall not exceed 40 years. Franchise projects with large investment scale and long return period may be appropriately extended according to the actual situation, unless otherwise provided by laws and regulations.
Article 9 The development and reform department of the State Council shall take the lead in promoting the infrastructure and public utility franchise model and strengthen policy guidance. Local development and reform departments at all levels should play a comprehensive coordination role, strictly control the project implementation areas, scope, plans, etc., perform project approval, verification or filing responsibilities in accordance with laws and regulations, and promote the implementation of projects.
Relevant industry authorities under the State Council shall perform industry management functions in accordance with their respective responsibilities in accordance with the requirements of the State Council on regulating the implementation of the new mechanism for cooperation between government and social capital; matters involving infrastructure and public utility franchise policies shall be submitted to the development and reform department of the State Council for full solicitation of opinions and If it is consistent with the macro policy orientation after evaluation, but has not been evaluated and demonstrated, or is inconsistent with the macro policy orientation after evaluation, it should not be announced for implementation. Local natural resources, ecological environment, housing and urban-rural construction, transportation, water conservancy, energy, finance, safety supervision and other relevant departments at all levels should carry out work related to franchise projects in accordance with the government authorization and their respective responsibilities.
The income and expenditures related to franchise projects incurred by the government and its departments shall comply with relevant budget laws, administrative regulations and relevant national regulations. Financial departments at all levels should strictly implement the budget management system, strengthen government fund supervision and local government debt management in accordance with the law, increase financial supervision, and strictly enforce financial discipline.
Article 10 Local people's governments at all levels shall standardize and promote franchise projects within the scope of the government's powers at the same level, and authorize relevant industry authorities, public institutions, etc. to serve as implementation agencies for infrastructure and public utility franchise projects in accordance with laws and regulations (hereinafter referred to as "implementation"). Agency"), responsible for the preparation, implementation and supervision of franchise projects, and clarifying the content and scope of its authorization.
Chapter 2 Conclusion of Franchise Agreement
Article 11 The main purpose of a franchise project shall be to give full play to the advantages of social capital in business management, technological innovation, etc., promote private investment, and improve the quality and efficiency of public products and public services.
Franchise projects should comply with the national economic and social development planning outline, special planning, regional planning, land and space planning, etc., and the construction and operation standards and regulatory requirements should be clear.
Article 12 The implementing agency shall take the lead in preparing the franchise plan in accordance with the authorization and with reference to the feasibility study report preparation specifications. The franchise plan should include the following:
(1) Project name and overview, construction background and necessity;
(2) Basic economic and technical indicators such as project construction scale, total investment, implementation progress, and standards for providing public products or public services;
(3) Investment return, price and calculation;
(4) Demonstration of project feasibility and franchise feasibility;
(5) The conditions that franchisees should meet and the selection methods;
(6) Government commitments and guarantees;
(7) State-owned asset management requirements involved in franchising, and asset disposal methods after the expiration of the franchise period;
(8) Other matters that should be clarified.
For franchise projects that implement government pricing, the opinions of the local price authorities regarding investment returns, prices and their calculations in the franchise plan shall be sought.
If the franchise period is intended to exceed 40 years, it shall be fully demonstrated in the franchise plan and submitted for approval together with the franchise plan.
The implementing agency shall ensure the integrity and continuity of the franchise project.
Article 13 The implementing agency may entrust a third-party agency with corresponding capabilities and experience to conduct a feasibility study on franchising and improve the franchising plan.
Article 14 The feasibility demonstration of franchise operation as mentioned in these Measures shall be based on the full life cycle cost of the project, output or service effects, construction and operation efficiency, risk prevention and control, etc., especially for the adoption of the franchise model and the traditional government investment model. Conduct comparative analysis in terms of input-output, economic and social benefits, etc., and demonstrate whether the project is suitable for the franchise model. In addition, the degree of market development in relevant fields, the status of enterprise construction and operation capabilities and willingness to participate, and the willingness and ability of users of project products and services to pay should also be evaluated to ensure that the franchise model can be implemented.
Article 15 The franchise plan shall be submitted to the investment authority or other relevant departments for review in accordance with the government investment project approval authority and requirements, reasonably control the project construction content and scale, and clarify the project output plan.
When reviewing the franchise plan, careful comparison and demonstration should be conducted on whether the project is suitable for the franchise model, and opinions from relevant departments should be solicited based on the division of responsibilities. If necessary, a professional consulting agency can be entrusted to conduct an evaluation.
Article 16 The implementing agency shall select franchisees through open competition such as bidding and negotiation based on the approved franchise plan.
Article 17 The implementing agency shall state whether it requires the establishment of a franchise project company in bidding documents, negotiation documents and other documents publicly selecting franchisees.
Article 18 Private enterprises are encouraged to actively participate in franchise projects through direct investment or sole proprietorship, holding, equity participation, etc. The implementing agency shall determine the specific ways for private enterprises to participate based on the list of new, renovated and expanded franchise projects formulated by the development and reform department of the State Council to support the participation of private enterprises and based on the actual situation of the project.
For eligible traditional and new infrastructure and public utility projects outside the areas listed in the list, we can refer to the spirit of the list, explore the franchise model, and actively encourage private enterprises to participate in appropriate ways.
Foreign-invested enterprises shall apply the provisions of the preceding paragraph with reference to private enterprises.
Article 19 The implementing agency shall, in accordance with the provisions of Article 16 of these Measures, fairly select legal persons or other organizations with corresponding management experience, professional capabilities, financing strength and good credit status as franchisees, and submit the project operation plan, unit price, etc. , franchise period, etc. as important criteria for selecting franchisees. Financial institutions are encouraged to jointly formulate investment and financing plans with competing legal persons or other organizations.
The selection of franchisees shall comply with relevant laws and administrative regulations on domestic and foreign investment access.
Franchisees selected in accordance with the law shall be made public to the public.
Article 20 The implementing agency shall sign a franchise agreement with the franchisee selected in accordance with the law.
If it is necessary to establish a project company, the implementing agency shall sign a preliminary agreement with the franchisee selected in accordance with the law, agreeing to register and establish the project company within a specified period, and sign a franchise agreement with the project company.
The franchise agreement should mainly include the following contents:
(1) Project name and content;
(2) Franchise mode, area, scope and term;
(3) If a project company is established, clarify the project company's business scope, registered capital, shareholder investment methods, investment ratio, equity transfer, etc.;
(4) The quantity, quality and standards of the products or services provided;
(5) Asset ownership during the construction and operation of the franchise project, as well as corresponding maintenance and renovation;
(6) Monitoring and evaluation;
(7) Investment and financing term and methods;
(8) Methods for obtaining income, methods for determining prices and charging standards, and adjustment procedures;
(9) Performance guarantee;
(10) Risk sharing during the franchise period;
(11) Corresponding requirements imposed on franchisees due to adjustments and changes in management requirements such as laws, regulations, standards and national policies, and cost bearing methods;
(12) Government commitments and guarantees;
(13) Emergency plan and temporary takeover plan;
(14) After the expiration of the franchise period, the methods, procedures and requirements for the transfer of projects and assets;
(15) Early termination and compensation in case of changes to the agreement such as changes in the implementation environment, major technological changes, major changes in market prices, etc.;
(16) Liability for breach of contract;
(17) Dispute resolution methods;
(18) Other matters that need to be clarified.
Article 21 The selected franchisee and his investment, financing and construction responsibilities shall not be adjusted. If adjustments are really needed, the franchisee selection process should be carried out again.
Article 22 The franchise agreement shall, in accordance with relevant laws, administrative regulations and national regulations, stipulate that the franchisee shall obtain income by charging users and obtaining other development and operation rights and interests related to the franchise project.
For fees that are collected uniformly from users and then paid to franchisees by the government, the government should take the initiative to disclose the details of revenue and expenditure, ensure that the funds are earmarked for their exclusive use, and pay them regularly in accordance with the franchise agreement.
The government can provide government investment support to user-pay projects during the project construction period on the premise of strictly preventing new local government hidden debts and complying with the requirements of laws, regulations and relevant policies and in accordance with the principle of equal treatment; government payments can only be subsidized in accordance with regulations. operation and cannot subsidize construction costs. In addition, financial funds shall not be used to cover project construction investment and operating costs through any means such as feasibility gap subsidies, guaranteed guaranteed yields, availability payments, etc. If special bonds are used as project capital, they shall be implemented in accordance with national regulations on capital management and relevant regulations on special bonds.
Article 23 The franchise agreement shall specify the mechanism for determining and adjusting prices or charges. Franchise project prices or charges shall be determined and adjusted in accordance with relevant laws, administrative regulations, national price policy provisions and franchise agreements.
The prices or charges set by the government in franchise projects shall be subject to the price or charge standards set by the relevant pricing agencies.
Article 24 The government may make commitments in the franchise agreement to prevent unnecessary construction of similar competitive projects and the provision of relevant supporting public services and infrastructure, but shall not commit to fixed investment returns or other commitments prohibited by laws and administrative regulations. matters.
Article 25 Franchise projects invested by the government through capital injection shall undergo approval procedures in accordance with the relevant provisions of the "Government Investment Regulations". Franchise projects invested by enterprises shall undergo approval or filing procedures in accordance with the relevant provisions of the "Regulations on the Administration of Approval and Filing of Enterprise Investment Projects". The implementing agency shall assist the franchisee in handling relevant procedures.
If the franchisee selected in accordance with the law is inconsistent with the project legal person when the project approval, land use, planning and other procedures were completed in the early stage of the project, the project legal person change procedures shall be handled in accordance with the law, and the implementing agency shall provide necessary support and convenience.
Article 26 If a project that has completed the approval, verification or filing procedures changes in construction location, adjusts the main construction content, adjusts construction standards and other major circumstances, it should be reported to the original approval and approval authority to re-perform the project review procedures, or re-filing, if necessary The feasibility study of the franchise model and the review of the franchise plan should be carried out again.
Article 27 The state encourages financial institutions to provide financial consultants, financing consultants, syndicated loans and other financial services for franchise projects. Franchise projects can use expected income to pledge loans in accordance with laws and regulations, and use project-related income as a source of repayment. Encourage insurance funds to provide diversified financial support for franchise projects through debt, equity, asset securitization products and other methods.
Franchise project financing shall protect the legitimate rights and interests of all parties in accordance with the law and properly handle creditor and debt relationships. It is not allowed to promise to use various types of fiscal funds as guarantees or as sources of repayment to prevent new hidden debts of local governments.
Article 28 Actively support qualified franchise projects to issue real estate investment trust funds (REITs) in the infrastructure field. Qualified franchise project companies are encouraged to carry out structured financing and issue project income notes, real estate trust asset-backed notes and asset securitization products.
The state encourages franchise projects to establish private equity funds in a market-oriented manner, introduce strategic investors, and issue corporate bonds, corporate bonds, and non-financial corporate debt financing instruments to expand investment and financing channels.
Article 29 Relevant departments of the people's governments at or above the county level, franchise implementation agencies, and financial institutions shall implement the investment and financing support measures stipulated in these Measures in accordance with the law, and shall not treat franchisees with different ownership systems differently.
Chapter 3 Performance of Franchise Agreement
Article 30 All parties to a franchise agreement shall abide by the principle of good faith and fully perform their obligations as agreed. The implementing agency shall fully and on time perform its obligations such as signing the franchise agreement, coordinating price adjustments, paying user fees collected on behalf of the agency, monitoring and acceptance, etc.; the franchisee shall provide public services in accordance with the quantity, quality, standards, time limit, etc. stipulated in the franchise agreement. products and public services, and perform other obligations stipulated in the agreement.
Unless otherwise provided by laws and administrative regulations, if either the implementing agency or the franchisee fails to perform its obligations under the franchise agreement or the performance of its obligations does not meet the agreed requirements, it shall continue to perform, take remedial measures or compensate for losses in accordance with the agreement.
Article 31 Protect the legitimate rights and interests of franchisees in accordance with the law. No unit or individual may violate laws, administrative regulations and these Measures and interfere with the legitimate business activities of franchisees.
Article 32 Franchisees shall implement relevant investment and financing arrangements for franchise projects in accordance with the franchise agreement and ensure the implementation of corresponding funds or funding sources.
Article 33 Franchise projects involving the construction, reconstruction or expansion of relevant infrastructure and public utilities shall comply with relevant laws, administrative regulations, statutory regulations, such as land spatial planning, relevant special planning, land management, environmental protection, quality management, and production safety. Planning conditions and construction standards stipulated in the plan.
Article 34 Franchisors shall provide high-quality, sustainable, efficient and safe public products or public services in accordance with relevant laws, administrative regulations, standards and franchise agreements.
The benefits generated by the franchisee through reducing costs, improving efficiency, and actively innovating under the premise of ensuring the quality of the project and product and service quality shall belong to the franchisee unless otherwise agreed in the agreement.
Article 35 All parties to the franchise shall abide by the state-owned assets management system, standardize the management of state-owned assets involved in the relevant stages and links of the franchise project, and prevent the loss of state-owned assets.
Franchisors shall, in accordance with technical specifications, conduct regular inspections and maintenance of franchise project facilities to ensure that the facilities are operating normally and that the assets are transferred according to regulations after the operation period expires.
Article 36 Franchisees have the obligation to keep confidential matters involving national security and should establish and implement corresponding confidentiality management systems.
The implementing agency, relevant departments and their staff shall have the obligation to keep confidential the business secrets of the franchisee that they learn during the franchising activities and supervision and management work.
Article 37 The implementing agency and the franchise operator shall archive and preserve relevant information in the construction, operation, repair and maintenance process of the franchise project in accordance with relevant regulations.
Article 38 The implementing agency shall strictly perform relevant obligations in accordance with the franchise agreement, provide convenience and support for franchisees to construct and operate franchise projects, and improve public service levels.
Administrative division adjustment, government change, department adjustment and change of person in charge shall not affect the performance of the franchise agreement.
Article 39 If the expected interests of the franchisee are harmed due to changes in laws, administrative regulations or policy adjustments, or if the franchisee is required to provide products or services other than those agreed in the agreement based on the needs of public interests, the franchise agreement or negotiation shall be carried out in accordance with the provisions of the franchise agreement. Reach a supplementary agreement to provide franchisees with fair and reasonable compensation. If laws and regulations have special provisions, those provisions shall prevail.
Chapter 4 Change and Termination of Franchise Agreement
Article 40 During the validity period of the franchise agreement, if the content of the agreement really needs to be changed, the parties to the agreement shall sign a supplementary agreement on the basis of consensus. If the change in the agreement may have a significant impact on the existing debt of the franchise project, the creditor's consent must be obtained in advance. If a franchise project involves direct financing, relevant information disclosure shall be made in a timely manner. If a franchise project involves substantial changes in operating entities, equity transfer and other major matters, the relevant industry authorities shall be notified in writing in a timely manner.
If it is really necessary to extend the franchise period after expiration, it can be extended after full evaluation and demonstration in accordance with relevant regulations, consensus reached through consultation and approval.
Article 41 During the franchise period, if a franchisee is unable to continue to perform its obligations under the franchise agreement due to serious breach of contract or force majeure or other reasons, or the early termination of the agreement occurs as stipulated in the franchise agreement, the franchisee shall not After consensus is reached, the agreement can be terminated early.
If the franchise agreement is terminated early due to government reasons, the government shall take back the franchise project and provide fair and reasonable compensation to the original franchisee based on the actual situation and the agreement.
If the franchise agreement is terminated early due to the franchisee's reasons, the franchisee shall perform relevant asset transfers, debt settlements, and breach of contract compensation responsibilities in accordance with the franchise agreement, and cooperate with the government to maintain the continuity of relevant public services and public products during the liquidation and transfer period. sex and stability.
Article 42 If the franchise period expires or is terminated early, the parties to the agreement shall handle the performance testing, evaluation, transfer, takeover, etc. of the relevant facilities, materials, files, etc. in accordance with the franchise agreement and relevant laws, administrative regulations and provisions. Acceptance and other procedures.
Article 43 If the franchise period expires or is terminated early, and the franchise method continues to be used for the infrastructure and public utilities, the implementing agency shall re-select the franchisee in accordance with the provisions of these Measures; under the same conditions, the original franchisee may be given priority. Operators.
If it is necessary to re-select a franchisee during the franchise period due to reasons such as reconstruction and expansion, the original franchisee may be given priority under the same conditions.
Before selecting a new concessionaire, the implementing agency and the original concessionaire should formulate a plan to ensure the continued and stable provision of public goods or services.
Chapter 5 Supervision, Management and Public Interest Protection
Article 44 Relevant departments of the people's government at or above the county level shall, in accordance with their respective responsibilities, supervise and manage franchisees' implementation of laws, administrative regulations, industry standards, product or service technical specifications, and other relevant regulatory requirements, and strengthen compliance with laws and regulations. Cost investigation and supervision.
Audit agencies at or above the county level shall audit franchise activities in accordance with the law.
Article 45 People's governments at or above the county level and their relevant departments shall supervise and manage franchise operations in accordance with laws, administrative regulations and administrative approval items decided by the State Council, and shall not illegally add administrative approval items or approval links in the name of implementing franchise operations. .
Article 46 The implementing agency shall, in accordance with the franchise agreement and relevant industry management regulations, work with relevant parties to regularly monitor and analyze the construction and operation of franchise projects, conduct regular operational evaluations, conduct corresponding performance evaluations in accordance with relevant regulations, and establish The price adjustment mechanism is based on the performance evaluation results and in accordance with the franchise agreement to ensure the quality and efficiency of the public products or services provided; at the same time, the potential risks of the project are assessed based on the operating and financial status of the franchisee.
Implementing agencies should regard public opinions as an important part of monitoring analysis and operation evaluation.
Article 47 People's governments at or above the county level shall disclose to the public information on policies and measures related to franchising, franchise project implementation agencies and other relevant units and their responsibilities.
The implementing agency shall submit the franchise plan, franchisee selection results, main contents of the franchise agreement and its modification or termination, government investment support, public product or service standards, monitoring analysis and operation evaluation results and other information to the online review and approval of national investment projects. Supervise the platform and disclose it to the public in a timely manner.
Franchisees should disclose the project's quarterly construction and operation status, audited annual financial statements, relevant accounting data, financial accounting, asset management and other relevant financial indicators to the public through appropriate means, and accept annual financial audits in accordance with the law. .
The information that should be disclosed as prescribed in the preceding paragraph does not include information determined to be state secrets according to law, as well as business secrets and personal privacy information.
Article 48 The public has the right to supervise franchise activities, complain to relevant regulatory authorities, or provide opinions and suggestions to the implementing agencies and franchisees.
Article 49 Franchisees shall provide public products or services to all users within the service area stipulated in the franchise agreement universally and without discrimination, and shall not implement differential treatment for new users.
Article 50 The implementing agency and the concessionaire shall formulate an emergency response plan and report it to the relevant departments in accordance with regulations. After an emergency occurs, emergency plans should be launched promptly to ensure the normal provision of public products or services.
Article 51 If the franchisee is indeed unable to continue to perform the franchise agreement due to force majeure or other reasons, the implementing agency shall take measures to ensure the continuous and stable provision of public products or public services.
Chapter 6 Dispute Resolution
Article 52 If any dispute arises between the implementing agency and the franchisee regarding the performance of the franchise agreement, it shall be resolved through negotiation. If consensus is reached through negotiation, a supplementary agreement shall be signed and implemented.
Article 53 If the implementation agency and the franchisee have any disputes over professional and technical issues in the franchise agreement, they may jointly hire experts or third-party agencies for mediation. If an agreement is reached through mediation, a supplementary agreement shall be signed and implemented.
Article 54 If the franchisee believes that the administrative agency has not concluded or performed in accordance with the law, has not performed in accordance with the agreement, or has illegally changed or terminated the franchise agreement, he has the right to make a statement and defend himself, and may apply for administrative reconsideration or file an administrative lawsuit in accordance with the law. .
For civil and commercial disputes arising from the rights and obligations stipulated in the agreement between the parties to a franchise project-related agreement, they may apply for arbitration or initiate a civil lawsuit in accordance with the law.
Article 55 If a dispute occurs during the existence of the franchise agreement, the parties concerned shall continue to perform their obligations under the franchise agreement during the dispute resolution process to ensure the continuity and stability of public products or public services.
Chapter 7 Legal Liability
Article 56 If the implementing agency or relevant administrative departments fail to perform their legal duties and interfere with the normal business activities of franchisees, they will be held accountable in accordance with the law; if a crime is constituted, they will be held criminally responsible in accordance with the law.
Article 57 If a public employee commits one of the following acts during the course of franchise management services, in accordance with the relevant legal provisions on governmental sanctions for public employees, if the circumstances are serious, he or she shall be given a warning, recorded a demerit, or recorded a major demerit; if the circumstances are serious, he shall be demoted or Removal from office; if a crime is constituted, criminal liability shall be pursued in accordance with the law:
(1) Collecting or apportioning property from franchisees in violation of regulations;
(2) Interfere with the normal business activities of franchisees, deliberately create difficulties and take advantage of others;
(3) Having a bad and rough attitude in franchise management service activities, causing adverse consequences or impacts;
(4) Failure to disclose relevant information on franchise projects in accordance with the provisions of these Measures, causing adverse consequences or impacts;
(5) Setting unreasonable conditions to restrict or exclude competition in the selection process of franchisees, and implementing discriminatory treatment against business entities with different ownerships;
(6) Other behaviors that infringe on the interests of franchise management service objects and cause adverse consequences or impacts.
Anyone who commits the acts in Items 1, 2 and 5 of the preceding paragraph, if the circumstances are particularly serious, shall be dismissed.
Article 58 If a public employee commits any of the following acts during the process of franchise management services, causing adverse consequences or impacts, he shall be given a warning, recorded a demerit, or recorded a major demerit in accordance with the relevant legal provisions on governmental sanctions for public employees; if the circumstances are more serious, he shall be given a warning, a demerit, or a major demerit. be demoted or dismissed; if the circumstances are serious, be dismissed; if a crime is constituted, criminal liability shall be investigated in accordance with the law:
(1) Abuse of power, endangering national interests, social public interests, or infringing upon the legitimate rights and interests of citizens, legal persons, and other organizations;
(2) Failure to perform or incorrectly perform duties, dereliction of duty, and delay in work;
(3) Adding additional approval procedures, approval links, and approval conditions in a disguised manner during work, extending the approval time limit in violation of regulations, or making unreasonable requirements, and there are formalistic and bureaucratic behaviors;
(4) Fraudulent, misleading or deceptive behavior at work;
(5) Disclosure of state secrets and work secrets related to franchise projects, or disclosure of business secrets and personal privacy acquired during the performance of franchise management service duties.
If a public official's conduct as stipulated in the preceding paragraph causes the franchise agreement to be unable to be performed or is abnormally suspended, affecting the continuity and stability of public products or public services, he shall be punished in accordance with the provisions of the preceding paragraph.
Article 59 Violates the provisions of Paragraph 2 of Article 22 of these Measures by withholding, misappropriating, collecting and disbursing the user fees for franchise projects uniformly collected by the government, resulting in failure to pay the franchisee as stipulated in the franchise agreement. If service fees are charged, the relevant responsible personnel shall be punished in accordance with the law. The franchise project implementation agency shall urge the arrears to be made up as soon as possible. If losses are caused, compensation or compensation shall be made in accordance with the stipulations in the franchise agreement.
Article 60 If a franchise operator violates laws, administrative regulations and national mandatory standards, seriously endangers public interests, causes the loss of state-owned assets, or causes major quality or safety accidents or environmental emergencies, the relevant departments shall order it to make corrections within a time limit and impose sanctions in accordance with the law. Administrative penalties; if the violation is refused and the circumstances are serious, the franchise agreement may be terminated; if a crime is constituted, criminal liability shall be pursued in accordance with the law.
Article 61 If a franchise project is obtained through improper means such as deception or bribery, the franchise project shall be taken back in accordance with the law and disclosed to the public.
Article 62: Relevant departments of the people's government at or above the county level shall establish credit records for illegal activities of franchisees and their employees and include them in the national credit information sharing platform. Serious violations of laws and untrustworthy behaviors will be exposed in accordance with the law, and joint punishments will be implemented in conjunction with relevant departments in accordance with laws and regulations.
Improve the government's integrity performance mechanism and incorporate the performance of government agency franchise agreements into the government integrity assessment and evaluation system. Relevant breaches of contract and untrustworthiness will be identified and punished in accordance with the measures formulated by the leading department for the construction of the social credit system under the State Council.
Article 63 If the public or franchisees believe that a franchise project participant’s behavior in violation of these Measures has damaged their legitimate rights and interests, they may lodge a complaint with the relevant industry authorities with supervisory and management functions in accordance with the law. If the industry competent authority cannot be determined, a complaint may be made to the franchise comprehensive coordination department designated by the people's government where the franchise project is located. Complaints should have clear requests and necessary supporting materials. The department that receives the complaint shall handle the complaint in accordance with the law and safeguard the legitimate rights and interests of the complainant. The performance of the franchise agreement will not be suspended while the complaint is being handled.
Chapter 8 Supplementary Provisions
Article 64 If the franchise of infrastructure and public utilities involves national security review, it shall be implemented in accordance with relevant national regulations.
Franchise projects that have not completed the bidding and procurement procedures before the clean-up and verification of government-private capital cooperation projects in February 2023, as well as subsequent newly implemented franchise projects, shall be implemented in accordance with these Measures. If relevant policy provisions are inconsistent with these Measures, these Measures shall prevail. allow.
Article 65 If laws and administrative regulations have other provisions on infrastructure and public utility franchises, such provisions shall prevail.
Article 66 The development and reform department of the State Council, together with relevant departments, is responsible for the interpretation of these Measures.
Article 67 These Measures will come into effect on May 1, 2024, and the original "Infrastructure and Utility Franchise Management Measures" (Order No. 25 of 2015 by the National Development and Reform Commission and other six ministries and commissions) will be abolished at the same time.