數字政府建設政企合作法律風險的規制模式

Legal Risks and Regulatory Modes of PPP in Digital Government Construction

數字政府建設政企合作的目標是公私協力實現公共給付；以數字化賦能中國式現代化。相較于傳統公共服務領域；數字政府建設政企合作存在數字技術侵權、政府權力遷移、行政優益權履行不能和責任虛化等法律風險；容易產生合作中斷、非正常終止等問題；致使合作結果與目標存在差距。政府規制、自我規制和元規制等現有風險規制模式各有優劣；但在面對數字政府建設的特定適用場景時均呈現出捉襟見肘之勢；表現為風險防範不足；對互動關注不夠；過於強調過程規制而缺乏結果有效性的考量。結果導向型合作規制模式強調結果與目標的一致性、協商與互動、合作績效與公共問責；對數字政府建設政企合作法律風險的規制更為妥當；並可分為目標規制、過程規制和結果規制三個層面。結果導向型風險規制模式的法律構造為：建構將公共價值嵌入算法的合作機制；並通過風險評估和公民參與程序規避侵權風險；強化信用監管、優化契約機制分別規避政府權力遷移風險和行政優益權履行不能風險；並通過風險管理程序予以實現；明確政企責任分擔；並通過公共問責程序規制責任虛化風險。

The goal of the public-private partnerships (PPP) in the construction of digital government is carrying out public service and promoting Chinese modernization via digitalization. Comparing to traditional public services, there are four legal risks in the construction of digital government which are the risk of digital technology infringement, transferring of governmental authority, failure to fulfill administrative priority power, and irresponsibility. These risks could easily lead to some phenomena such as interruption, and abnormal termination, which lead to a gap between the result and the purpose of PPP in the practice of digital government construction. It is difficult for traditional risk regulatory modes, such as governmental regulation, self-regulation and meta-regulation to cope with the risks of PPP in the construction of digital government, the new mode should be introduced under the background of cooperative administrative law. Outcome-based cooperative regulation emphasizes the consistency of result and objective, the commonality of risk identification and the classification of credit supervision, cooperation performance and public accountability, which make it to be a better risk regulation mode for the legal risks of PPP in digital government construction. It can be explained in three levels of target regulation, process regulation and result regulation. Under this mode, the specific risk regulatory paths of PPP in digital government are as follows: building a cooperative mechanism which input public value into the algorithm, and avoiding infringement risks by procedures of risk assessment and citizen participation; strengthening credit supervision and optimizing contract mechanism to avoid the risk of transferring of governmental authority and administrative advantage right failure to perform respectively, which can be achieved by risk management procedures; clarifying the sharing of responsibilities between the government and enterprises, and avoiding the risk of responsibility evasion through public accountability procedure.