Keywords: mandatory norms, encouraging norms, and incentive measures for gutter oil
Following the melamine incident, the problem of gutter oil once again attracted widespread attention. All walks of life have also made suggestions for the treatment of waste oil, but with little effect. The author intends to reflect on the existing governance model and put forward the appropriate governance model.
First, the analysis of the existing governance model-reflection centered on mandatory norms.
For operators engaged in edible oil, they are engaged in industries related to edible oil, and there are bound to be problems of cost and income. Its income mainly comes from the high economic profits from the operation of waste oil, which improves the economic situation of a few waste oil operators. However, this improvement is only temporary, because the acquisition of this benefit is based on the sacrifice of the overall interests of society, lacking the most basic legitimacy and the motivation to recycle and benefit society. Therefore, enterprises and individuals engaged in edible oil enjoy the short-term profits brought by edible oil, but they push huge costs (negative externalities) to the whole society. The imbalance in the distribution of rights and obligations here is obvious: these enterprises and individuals enjoy rights that are extremely disproportionate to their obligations. The core factor that can push operators to behave like this is profit. From the supervisor's point of view, the existing institutions that supervise gutter oil mainly include: quality supervision, industry and commerce, health, environmental protection, urban management, agriculture, drug supervision and so on. According to the conventional supervision division among functional departments in China, the Quality Supervision Bureau is responsible for food production and processing, the Industrial and Commercial Bureau is responsible for circulation, the Health Bureau is responsible for catering, the Environmental Protection Bureau or the Urban Management Bureau is responsible for waste oil raw materials, and the Agricultural Bureau is responsible for animal husbandry. In addition to the main responsible units, these links are theoretically coordinated by other regulatory authorities. It seems that every link and every place is managed by someone, but the reality is that the multi-head management of various departments eventually becomes unmanned. In the case that the function and orientation of the subject of supervision are not clear, the legal norms adopted by legislators and the means of supervision adopted by the subject of supervision will have certain deviations at the due level, and will certainly not achieve practical results at the practical level. The reason for this situation can be summarized in two words: system.
The above analysis is mainly from the actors (operators) and supervisors (social supervision and government supervision), and it is concluded that the reasons for the flood of illegal edible oil are "interests" and "systems". The reasons people from all walks of life are looking for for rampant gutter oil can also be roughly classified as "benefits" and "system" here, because when they are looking for reasons, they also put the starting point on actors and producers, but the focus is different in these two aspects. Judging from the focus of discussion and the number of reasons put forward by all walks of life, they put the reasons for the flood of waste oil on the "system" level, but rarely think deeply about the reasons on the "interest" level. The operator behind the profit is the managed person in the economic and legal relationship and holds the initiative; The subject of supervision behind the system is the manager in the economic and legal relationship, which is passive. The existing reason is basically that the focus of thinking is on passive regulators, ignoring or belittling active operators. Mandatory norms closest to regulators are also the focus of realistic governance. In short, the characteristics of the existing governance model are: the focus is on "system" rather than "profit", and too much attention is paid to the regulators and their mandatory norms, but not enough attention is paid to the profitability of the market and operators.
Second, the change of governance concept-centered on "promoting norms"
As mentioned above, the operators and the profits they pursue have the initiative in the economic and legal relationship of operating waste oil, and profits naturally have a huge incentive function, which can mobilize people's enthusiasm from the depths of the soul. In the field of economic law, its incentive function is mainly realized through the unique regulatory means of economic law-advocacy norms, which are based on the incentive norms fed back by the market. Therefore, the logic of "operator-profit-incentive-function of economic law-advocacy norms" is clear enough: the key to the governance of gutter oil lies in the exertion of the incentive function of economic law, which in turn depends on the advocacy norms of economic law. In a sense, advocating norms has a natural fit with the production and operation of the rampant situation of waste oil, which is a key to open the door to the radical cure of waste oil.
Mandatory norms are legal norms that restrict the freedom of behavior of the parties, while advocacy norms are based on respecting the independent decisions of the parties; Mandatory norms are often associated with seriousness and machinery, while advocacy norms are full of flexibility and affinity. The regulatory logic of advocacy norms is: when people violate advocacy norms, the legal consequences are negative, but there is no need for sanctions; When people abide by it, especially exemplary and remarkable achievements, it sometimes leads to positive legal consequences of rewards. The purpose of popularizing norms is usually achieved through specific incentives. Reward regulation is only related to advocating norms, which is a form of advocating legal consequences in norms. (2) Incentive measures of economic law, including: tax reduction and exemption, profits, credit concessions, price concessions, material supply concessions, financial subsidies, bonuses, and incentives for units or their products. (3) Reward has nothing to do with mandatory norms and arbitrary norms. No matter whether people violate or abide by mandatory norms or arbitrary norms, it will not lead to reward consequences. ④ The biggest difference between the advocacy norms and the existing mandatory norms is that the object of the advocacy norms is the gutter oil operators. Operators play a leading role in the economic and legal relationship of edible oil, which can change the passive position of regulators in this legal relationship. On the other hand, we can pay attention to the most urgent demand of operators-profit. Therefore, the key to the problem of directly promoting norms-"profit", as long as efforts are made in promoting norms, the disadvantages of "system" and the temptation of "profit" may be clarified and adjusted. This is an idea of catching thieves and attracting the source of Wang.
Third, correctly grasp the governance model of "promoting norms as the center"
(A) the government to increase financial subsidies. Find out all stakeholders in the edible oil production industry chain and give corresponding financial subsidies according to the particularity of each stakeholder. (1) Establish the responsibility contracting system for waste oil recovery. The regulatory authorities divide their respective monitoring areas into several small areas, and then contract these small areas to local retail investors who fish for waste oil, who specialize in this business and pay these workers according to the modern enterprise wage system model; Then, specialized waste oil recyclers will buy waste oil. (2) Establish a paid acquisition system. The gutter oil produced by large restaurants, slaughterhouses and other enterprises with relatively standardized management should also be purchased by gutter oil recyclers in person, and the purchase price should not be lower than the "black market price" of the original restaurant illegally buying and selling gutter oil; Encourage catering and other enterprises that manufacture waste oil to install oil-water separators and other equipment, and give appropriate financial subsidies. (3) Establish market access system and strengthen the role of incentive mechanism. Waste oil recyclers should, under the circumstances permitted by law, formulate corresponding entry thresholds and conduct restrictive operations; Those who have not obtained legal permission shall not engage in waste oil recovery business; For the processors of gutter oil, they can be encouraged to increase scientific research through tax exemption, rent-free and financial subsidies.
(two) to help waste oil enterprises to expand the oil market. The final products produced by the existing waste oil processing enterprises are mostly biodiesel. However, in China, PetroChina and Sinopec monopolized the diesel supply market. On the one hand, biodiesel has not yet established national standards, and petrochemical giants will not buy it; On the other hand, it is also difficult for private enterprises to enter state-owned sales channels. In the end, biodiesel produced by private enterprises can only be sold to extremely limited markets such as private ships and private gas stations through their own market development. Under multiple pressures, many biodiesel enterprises will eventually switch to chemical raw materials, otherwise it will be difficult to survive. It is really difficult to break the existing monopoly of PetroChina and Sinopec. However, it should not be difficult to establish a national standard for biodiesel. Therefore, the state should establish a national standard for biodiesel as soon as possible, so as to clear the technical obstacles for biodiesel made from waste oil to enter the sales outlets of PetroChina and Sinopec. In addition, the law should make mandatory provisions for biodiesel made from waste oil to enter the state-owned sales channels, forcing PetroChina and Sinopec to buy it.
Precautions:
① Qi Duojun: On the Adjustment Methods of Economic Law, Law No.5, 199 1, p.41.
(2) Qi Duojun: Several Jurisprudence Issues in the Study of Economic Law, Forum on Politics and Law, No.3, 1993, p.62. ..
③ Qi Duojun: On the Adjustment Methods of Economic Law, Law No.5, 199 1, p.5 1.
(4) Qi Duojun: Several Jurisprudence Issues in the Study of Economic Law, Forum on Politics and Law, No.3, 1993, p.63. ..
About the author: Song (1987-), female, from Yongzhou, Hunan Province, is a graduate student of Economic Law at Zhongnan University of Economics and Law.