The Law of Energy Management Contract

Transcription

1 The Law of Energy Management Contract ZHANG Yudong School of Economic and Trade law, Shandong University of political science and law, China, Abstract: Introducing the energy management contract mechanism for 30 years of history, contract management mechanism of energy in the development of our country is not satisfactory, although our country government these years used a large number of policy tool to promote energy contract management mechanism, but the application of legal protection mechanism is still lacking, This has become the main reason limit its development. The author suggested that, in order to ensure the development of energy management contract, separate legislation, establish energy services companies market admittance system for its implementation, strict management, clear energy management contract party and the participant's rights and obligations, and through the perfect relevant systems and policies for energy contract management mechanism. Keywords: Energy management contract, Legislation, suggest 1. Introduction The contract management mechanism is China's energy government push a realization of energy saving and emission reduction targets and tasks for the effective mechanism, but the implementation method of the main uses the method of soft law, not hard law, scholars to law character energy contract management attention often focus on the development of foreign energy services companies in China, or energy to overcome difficulties in financing company, but few people focus on how to perfect the current laws and regulations for the administration of energy service contract mechanism, the author thinks that by domestic and foreign legislation experience this article is very necessary. 2. Energy Management Contract, Introduction and the Development in Our Country Energy management contract is a kind of energy-saving mechanism based on the market, originated in the 1970s, the oil crisis in Europe, America, Japan, many are popularized and applied gradually, and has accumulated rich experience. Chinese scholars to the definition of contract management contract are similar. By 2010, June 9, the national development and reform commission announced the financial reward fund energy management contract, the interim measures for the administration of the contract to the concept of energy management. It refers to the energy services companies and energy-using units by contract agreement, saving energy form service company goal to provide the necessary service, energy-using units in energy conservation benefits payment services companies and reasonable profit. Energy-saving Services Company provides energy-using condition refers to the diagnosis and energy-saving design, project financing, the transformation and operation management and service. This is energy-saving service company profit for the purpose of business, but the nature of industry of energy conservation and emission reduction objectively plays a great role in promoting, is in accord with the government of low carbon and advocating the concept of ecological civilization, therefore, the energy management contract mechanism of support from the government commonly. The energy management contract mechanism as a win more mechanism, the energy dissipation users, service company, energy-saving equipment manufacturers, and financial institutions in the process to grab a slice of the mechanism, but also for the application and development of sustainable power provided. Energy contract management in the contract with the "management" on a fuzzy nature of this contract, the government seems to contain more easily, be understood as a administrative contract, but the 478

2 analysis of the contents of the contract, the contract with the management of energy used in our country " The contract law of PRC " in the contract and no different, it can be classified as a financing lease contract. In 1996, energy contract management pattern with "Chinese energy conservation projects", this project in China by the state economic and trade commission, the world bank, global development, environmental fund jointly established in Beijing YuanShen energy-saving technology,limited liability company of liaoning province, the energy saving technology development company and shandong province energy engineering Co., LTD (shandong melts shihua lease Co., LTD) three demonstrative energy management company, combined with the national condition of our country, the three companies energy-saving projects mainly focus on industrial enterprise, the three companies also represents the development of China's energy services companies general development track, successful experience and failure. Until 2009, China's energy service companies, more than 500 gross nearly 600 million Yuan. 3. The Chinese Contract Law of Energy Management Chinese government fully recognize the contract management mechanism, the effect of energy to the implementation of this mechanism, this effort is also mainly embodies in use of government policy tool to promote energy contract management mechanism of application. On March 16, 2000, the state economic and trade commission, the ministry of national quality technology supervision bureau, the further advance the green lighting project ". For the first time, it puts forward energy management this noun. It took the contract energy management as an effective measure to speed of illumination appliances popularization and application. "will be green lighting project into comprehensive resource planning and demand management, establish and perfect pilot project service company, adopting" energy "project energy management contract of financing mechanism, the implementation of lighting system reform" user. Between 2000 and 2006, the first state to comprehensive utilization of resources and energy saving five-year planning, the state council, national development and reform commission, the state economic and trade commission, the ministry of national quality technology supervision bureau, and promote the department has below the implementation of planning. On August 6, 2006, China promulgated by the state council on strengthening the work of energy; this is the first book about energy contract management of legal documents; in the application effectiveness is improved. This decision "accelerating push energy management contract, promote enterprise energy-saving technical renovation", energy contract management as the cultivation of energy service system is an important work to do. Then, the national construction ministry issued a circular on this decision, in order to promote the implementation opinions of the progress of work. On May 23, 2007, the state council issued the saving work plan, the comprehensive plan "regulation:" cultivating energy-saving service market, accelerate energy contract management, implement key support professional service company for enterprise and energy in party and government organs, public facilities and building schools provide diagnosis, saving transformation, design, operation and management and financing services." On October 28, 2007, the tenth National People's Congress, the 30th session of the standing committee of the People's Republic of China was revised saving energy law, first in the form of law clearly state taxation, price policy in the aspects of "contract" energy management support. The first paragraph 2 of article 66: "countries use fiscal policy support, price, etc, and promote the power demand side management, contract management, conservation of energy saving measures as voluntary agreement." August 1, 2008, the public institutions, the energy 531 began implementation regulations, it regulation: "first and public institutions can use energy contract management mode, service agencies entrusted energy saving design, financing, diagnosis, and management." By 2010, March 17, the state council meeting held, quicken implement energy management contract, promoting the development of service industry, energy policy measures for strengthening policy support and guide by market, accelerate energy of new technologies, new products, and constantly improve the popularization and application of the efficiency of energy utilization, and build a resource-conserving society. On April 2nd, development and reform commission, 479

3 ministry of finance, the people's bank of China and state administration of taxation jointly issued on speeding up the implementation of energy saving service contract management to promote the development of industry, the general office of the state council on forwarding requirements, all localities and departments must fully realize the implementation of energy conservation and development contract management service industry, and the important significance to take effective measures to create a good policy environment, promote efficiency service industry development. On May 4, the state council issued on further intensify efforts to ensure realization of "11th five-year plan" energy conservation and emission reduction targets of notice, request all regions and departments, the energy conservation and emission reduction in a more prominent position, formulating the region this year backward production task, and task decomposition to city, county and relevant enterprises. On June 9, the national development and reform commission announced the financial reward fund energy management contract, the interim measures for the administration of the proposed method in 2010 will arrange the central finance fund 20 million Yuan, the company adopts services for support saving energy contract management mode in industry, construction, transportation, etc, and public organizations implement energy saving transformation. Thus, a total of 58 in the applicable laws, rules, regulations and normative documents referred to in the energy management contract, from the file number and content of Chinese government can see from the introduction of energy management contract, to recognize the value and development of Chinese government energy management contract implementation of main basis is not hard and soft law means of law. The implementation of the energy management contract mechanism is very adverse. 4. The Energy Management Contract Legislative Suggestions The energy management contract mechanism of a successful application is necessary to give legal protection, especially hard law; therefore, the essential guarantee of our energy management contract has put forward the following Suggestions. 4.1 To energy management contract separately legislative imperative. In the United States, 46 states have passed on the legislation; the EMC is worth our using for reference. Separate legislation content should include such content: Energy company market access system should be further clear. At present, our company adopts the basic energy company, and no special requirements. From the nature of the companies, industry and commerce registration department also lack of energy services companies ", "energy conservation service companies, and other forms of company, its particularity don't reflect Energy-saving service companies implementing strict management. From our decades of energy contract mechanism, because the market credit mechanism and corresponding policies and measures, and the lack of energy and service companies (especially in small and medium-sized), energy service contract serious distortion existed in the credit relations and universal moral risk behavior, contract management, project in energy market process is facing a huge obstacles. [1] As the contract both sides, energy-saving and user service enterprise exists between the serious information asymmetry, if no energy services companies implement strict management, conservation service company fail to make the user will lose faith, is the development of energy contract management mechanism of hardship. The author thinks that the administration of energy conservation service company can implement enterprise qualification grade management, conservation service company shall, in accordance with regulations apply, not ratify enterprise qualification certificate of the energy service level of qualification certificate (hereinafter referred to as the enterprises), and shall not be engaged in energy saving services. From the enterprise shall have the conditions, including the enterprise's registered capital and the financing capability, is engaged in the service of energy saving, signed the contract, the performance of services and professional level, the enterprise can be divided into several levels (4), consider into the enterprise qualification and energy level in the project scale, the qualification grade enterprise in provisions within 480

4 the scope of business services, energy assumes task boss's head. The qualification of energy-saving service enterprise implements the annual inspection system. Scheduled for does not accord with qualification or bad management behavior of the enterprise, the original approval authority relegation qualification certificate or cancellation. Any unit and individual shall not be altered, leased, lent, sold qualification certificate Clear energy services companies of relevant rights and obligations, or clear energy security service on the terms of the contract, and the energy conservation service company investment returns right. Collect So far, our country about energy contract management does not see more, but this does not mean that energy management contract mostly got a very good performance. Instead, the energy conservation service companies often facing default cost saving, and considering the energy management contract performance, friendly cooperation period to implement the importance of saving energy project service company, it often take forbearance attitude, which further embolden the user's breach of contract, the parties perform becomes inflationary pressure. If the user bankruptcy, energy-saving fee according to general creditor can handle, energy is unable to safeguard the interests of the company. In addition, about saving equipment and facilities of the property rights transfer delay also finds, if the parties have agreed beforehand, it will become the contract between the parties. These problems are and energy management, the nature of the contract, some scholars believe that the energy management contract is a contract, the explanation of energy-saving service company is very adverse, scholars think energy management contract is a financial leasing contract. The author thinks that energy management contract should be from nature as a financing lease contract, but it is not typical and traditional financing lease contract, international leasing the means more similar leveraged lease. Leveraged lease financing lease is a special way of, also called balance leasing or lease by trade, is demanding party government to provide equipment rental and credit, and tax preferential leasing company to make equipment rental conditions of a kind of way, is a use of financial leverage principle of lease form. Leveraged lease of the syndicated loan, similar to the lessor by leasing equipment purchase 20 ~ 40% of the amount, and the rest of the main source of funds is absorbed bank loans and social idle capital; generally enjoy the benefits of lower taxes. It depends on the underlined by small and, for the leasing items made a huge amount of money. The contents of the contract with the traditional financing lease basic same, but because of the complexity of the contract becomes magnified many participants. At present, our rental market is not well developed, in the practice of the lease form of financing lease and sale of typical to rent two kinds, leveraged lease function hasn't played out. China has issued a financing lease, and this special legislation is not expected to contract, if can separate energy management legislation, can put leveraged lease contract content, and clear energy contract management of all participants in the contract, the rights and obligations of the operating mechanism of energy management of the impetus is huge Undoubtedly Consult us some state legislation, government buildings must be in accordance with the energy management contract way retrofit, the provisions of the contract, the longest energy management contract stipulates the contract number, the bidding process energy management. [2] 4.2 Perfect the relevant regulations and relevant system reform, for contract management mechanism of energy to escort. A heavier burden is restricted by the energy of the enterprise development is an important reason, 2010 April 2, development and reform commission, ministry of finance, the people's bank of China and state administration of taxation jointly issued on speeding up the implementation of the contract management to promote energy conservation service industry development, and puts forward the opinion of energy-saving service industry take proper tax policy support to business tax and value-added tax exemption of enterprise income tax, the reduction or exemption for the main content, but the specific measures shall be formulated separately, yet it is worth while. Relevant accounting system in the opinion of above mentioned, at all levels and government agencies and institutions, enterprises of how energy expenditure made specific provision, the expenditure of 481

5 energy, but how to confirm the service company and income. This article argues that the energy of the enterprise service (or share of energy-saving benefit - fees), change of revenue and expenditure, reflect the income of energy service company objectively and reflect. At the same time, we should perfect the financial and accounting systems and regulations, regulating the management of energy contract between specific business accounting, in order to promote energy saving of rapid and stable development. [3] To improve energy conservation positivity of enterprise, also need to develop industry highest and lowest limit consumption, energy efficiency standards, rewards and punishment system energy contract management in enterprise conscientiously implement conservation project. Form, 5. Conclusion The contract administration of energy conservation, the separate legislation, service company of energy-saving service company, and clear energy management contract party and the participant's rights and obligations, and through the reform and perfect the relevant laws, regulations and policies of the contract management mechanism, the energy in China's progress is necessary, also can't wait. References [1]. Zhang Shilian, Cai Henian, Piao Guofeng. the energy managment contract project and credit. architecture, 2009(1):55(in chinese) [2]. Lan YuJun. the current implementation of the energy managment contract, the main obstacles and countermeasures study. Shanghai energy-saving, 2009(11):3(in chinese) [3]. Qi wei, Liu Zhuang. The energy contract management application process of the main problems and countermeasures. Industry and commerce administration,2009(7):62(in chinese) 482