□ Our reporter Zhao Li
□ Intern Sheng Jie of this newspaper
On the street, a number of workers dressed in "city appearance" uniforms gathered around a bicycle, carrying bundles of sugar cane from the bicycle to a small Picari with the words "city appearance" printed on it. After the basket was emptied, the old man selling sugar cane stood in the street and cried … …
Recently, the "rough treatment of the elderly selling sugar cane" in Sanxing Town, Nantong City, Jiangsu Province has aroused great concern in society. The government of Samsung Town reported that the personnel of the third-party city appearance company who bought services for Samsung Town dressed in "city appearance" uniforms. Subsequently, the Disciplinary Committee of Haimen District of Nantong City intervened in the investigation, and many people in the Samsung Town Government were punished.
With the continuous fermentation of this matter, people have a heated discussion on whether the law enforcement work can be entrusted to a third-party company, whether the law enforcement by third-party personnel is legal and how to regulate it. The "Rule of Law Daily" reporter interviewed three experts in administrative law, and the experts agreed that it is illegal to outsource law enforcement and send personnel from third-party companies to the streets to enforce the law.
"The rude and barbaric behavior of the personnel dispatched by the third-party company in Nantong has adversely affected the local government. ‘ Outsourcing ’ It must be implemented in strict accordance with the principle of the operating mechanism of the government’s purchase of services to prevent deformation. " Wang Yukai, a professor at the Central Party School (National School of Administration), said that in the above-mentioned incident, although it was the personnel sent by a third-party company who "encircled and robbed" sugar cane, it should be regarded as a duty behavior, belonging to the seizure of property, which is an administrative compulsory measure stipulated by the administrative compulsory law.
"Third-party companies send personnel as assistants of administrative law enforcement personnel, not law enforcement subjects, and cannot enforce the law independently." Wang Yukai said that the Measures for Urban Management Law Enforcement issued by the Ministry of Housing and Urban-Rural Development in 2017 stipulates that the competent department of urban management law enforcement can allocate urban management law enforcement assistants to cooperate with law enforcement personnel in law enforcement assistance; The legal consequences arising from the co-management personnel engaging in law enforcement auxiliary affairs shall be borne by the competent department of urban management law enforcement at the corresponding level.
"According to the provisions of the Administrative Enforcement Law, only an administrative organ or a non-administrative organ authorized by laws and administrative regulations can take enforcement measures, and Nantong third-party company is engaged in the outsourcing of city appearance management provided by the local government, which is a kind of entrustment, not authorization. Therefore, it is against the administrative enforcement law for employees of this company to detain hawkers’ sugar cane and take administrative enforcement measures." Yang Xiaojun, a professor of politics and law teaching and research at the Central Party School (National School of Administration), said.
Yang Xiaojun told reporters that those who can take to the streets to enforce the law must obtain the law enforcement qualification certificate issued by the competent department through examination. The personnel dispatched by Nantong third-party company have no law enforcement power, but they can do some work like cleaning, exposing small advertisements and cleaning graffiti.
Wang Yukai believes that the "rough treatment of the elderly selling sugar cane" incident exposed some problems existing in third-party companies and public service buyers:
First, outsourcing services are strictly regulated and cannot be arbitrary. The above-mentioned events exposed the mode of purchasing services, and there were problems in the implementation process, and the grass-roots government departments that purchased services needed to bear the responsibility;
Second, third-party companies should ensure the basic quality of personnel, including personnel training, operation mechanism and principle norms. In this regard, the third-party company must be responsible for the above incidents, and the recruited personnel do not match the duties to be performed;
Third, this incident is not a case. When purchasing services, grass-roots governments must strictly check and make clear which items can be purchased from the society and which items cannot be purchased. At present, the law clearly stipulates that the affairs with law enforcement power should not be governed by purchasing services. If the national policy allows the purchase of services through third parties, strict norms and operating mechanisms should also be formulated.
The reporter checked the public information and found that in recent years, service outsourcing was regarded as a measure to solve the urban management problem. At present, Shanghai, Shenzhen, Guangdong, Qingdao, Shandong and other cities have adopted this market-oriented operation mode. In June this year, Qingdao local media published a document introducing that 128 "outsourcing service teams" with a total of more than 4,900 people have been built in the local area.
In Wang Yukai’s view, first of all, we should affirm the role of government purchasing services in the whole process of public affairs, and we should not fundamentally deny the whole service model and governance model because of an accident. The government service outsourced by the third party is an innovative model of government management after the reform and opening up. After the implementation of this model, the benefits are still obvious, such as reducing the administrative establishment of the government, saving government expenses and improving the efficiency of government service. It is also a global trend that some non-law enforcement and transactional work is purchased by the government and undertaken by social third-party service organizations.
Secondly, in the process of purchasing services, the state has strict regulations. Generally, some matters with law enforcement power cannot be directly entrusted to a third party. Even co-managers hired by public security departments or urban management departments and dispatched by third-party companies can only play a role in assisting law enforcement. The law enforcement power is still carried out by formal public security police or urban management personnel. In the process of dispatching by a third-party company, the dispatched personnel need to have certain literacy according to the requirements of government departments, which is the minimum condition.
"Generally speaking, the government’s external purchase of services is usually transactional or technical. Some professional and technical work, such as the construction of platforms and systems in the construction of digital government, the government itself does not have or lacks such technicians, and can only find professional companies to help. " Yu Lingyun, a professor at Tsinghua University Law School, said.
According to reports, in order to avoid the abuse of law enforcement power, administrative enforcement law, administrative punishment law and other laws have strictly limited the subject of law enforcement. The administrative compulsory law stipulates that administrative compulsory measures shall be implemented by administrative organs as prescribed by laws and regulations within the scope of statutory functions and powers. The power of administrative compulsory measures shall not be entrusted. No subject other than the administrative organ may take administrative compulsory measures against citizens.
Experts interviewed believe that although the Administrative Punishment Law leaves a gap for entrusting law enforcement, it strictly limits the organizational conditions entrusted, including "being established according to law and having the function of managing public affairs" and "having staff who are familiar with relevant laws, regulations, rules and businesses and have obtained administrative law enforcement qualifications", so as to ensure that law enforcement does not deviate from the law enforcement subject.
"Even if it is suitable for outsourcing services, local governments should effectively restrain them. First of all, the government should formulate strict standards and norms, including the content of services to be purchased, how to provide services, and what conditions to meet before being eligible for contracting. There must be clear and strict checks on the qualifications of service companies, especially on the quality of personnel and personnel training. " Wang Yukai said that the relevant government departments should dynamically check and supervise the behavior and process of third-party service provision, and timely terminate the contract or investigate the responsibility if it does not meet the requirements, so that third-party service organizations can provide services in a standardized and orderly manner.
"Services that are not suitable for outsourcing should be recovered immediately and provided by local government departments. I think it is necessary for all localities to sort out what is outsourced under the name of service outsourcing, and whether there is management power and law enforcement power. " Yang Xiaojun suggested that for services suitable for outsourcing, local governments should make public announcements, have supervision standards and mechanisms for outsourcing, and train, educate and standardize the personnel dispatched by outsourcing companies. "If you can’t pay the money, you can leave it alone. That’s called package dumping, not outsourcing."