公共服務作為公營事業民營化的憲法界限——法國法制的觀察

Public Service as a Constitutional Limit of Public Enterprise’s Privatization: A Perspective from French Law

公營事業的民營化以及放寬管制，可謂係自二十世紀80年代以來，全球政治經濟體制變遷的主旋律。透過這樣的制度變革，國家得以引入較具有彈性以及效率的市場力量，矯正國家直接投入於生產活動所帶來的資源虛擲與浪費。因此，對於歐洲有著龐大公營事業國家而言，真正的政策選擇已經不是要不要進行民營化，而是這一政策的界限問題。其中法國作為歐陸有著龐大公營事業的國家，長年以來一直面對的討論就是這樣的問題。而在民營化的政策辯論中，公共服務這樣一個公法學上的傳統概念，更在整體的政策變遷過程中，形成重要的基礎考量，甚至也在相當程度上，引發有關國家任務與功能的進一步辯論。本文擬以法國公法學中「公共服務」概念的形成過程出發，探究憲法秩序本於公共服務的要求，對於民營化活動所劃下的制度界限。同時也對我國法制中相關問題之討論，特別是正在進行的鐵路民營化相關措施，引入若干得以比較對照的基礎理解。

The privatization and deregulation of the public sector or public enterprise has been a major theme in the global political and economic transformation since the 1980s. Through such institutional or organization changes, the state has been able to bring in more flexible and efficient market forces to correct the wastage and waste of resources resulting from the state's direct investment in productive activities. For the European countries with large public enterprises, therefore, the real policy choice was no longer whether or not to privatize, but rather the limits of this policy. France, as one of the most known countries with a large public sector in Europe, has been faced with this question for many years. In the debate on privatization, the traditional concept of public service in public law has been an important consideration in the overall process of institutional change, and has even led to further debates on the role and function of the state. On 2024, Taiwan’s governmental Railway Agency has changed it’s organization to a civil company. Such a event revoked once again the discussion of public enterprise’s privatization police. In fact, it is not only an issue of enterprise’s organization, but also an issue of public service: an economic and convent way of transportation, is still a mission of government? How shall we face all the difficulties from this organization change? The jurisprudence of constitutional court has given us what kind of principle in this issue? In this paper, we explore the institutional boundaries drawn by the constitutional order in relation to privatization activities in the light of the requirements of public service, starting from the formation of the concept of 'public service' in French public law. At the same time, it introduces some basic understandings of comparative law into the discussion of related issues in Taiwan.