Research on the legal positioning and changes of p

2022-10-02
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On March 15, 2015, the CPC Central Committee and the State Council issued several opinions on further deepening the reform of the power system (Zhongfa [2015] No. 9) (hereinafter referred to as Zhongfa No. 9 document), marking the official launch of a new round of power system reform. With the gradual implementation of the reform policy, the legal subjects of the power market are more diverse, the legal positioning and business model of power enterprises have changed significantly, and the legal relationship with other market subjects has been significantly adjusted. New legal problems will gradually appear. The power law system constructed under the planned economic system has lagged behind the reform practice, and the solutions to the above specific problems after the reform are temporarily "absent". Based on this, in the case of imperfect legislation, this paper focuses on the legal relationship between the main bodies of the power market after the power system reform, repositions the functional role and legal positioning of power enterprises in the power market, combs and analyzes the main business changes brought about by the liberalization of power selling side, the liberalization of incremental distribution business, and the fair and non discriminatory opening of electricity by power enterprises, and puts forward relevant suggestions

01 legal relationship between power enterprises and other market subjects after the reform of the power system

changes in market subjects after the reform of the power system

under the original vertical integrated management mode of power generation, transmission and distribution, there is no "market" theory, and power is "bought and sold alone", only power generation enterprises, power enterprises, users and other trading subjects, and the market trading relationship is relatively simple. After the establishment of the power market, "opening up the two ends" to implement the power sales side reform, "multi buyer - Multi seller", the market subjects include trading subjects and service subjects. The former includes power generation enterprises, power enterprises, power sales enterprises, users and other market operating institutions that master market resources and directly participate in market competitive transactions. They are market participants, competitors and regulated, and they are required to participate in the market in accordance with the law. The latter includes power trading institutions, power dispatching institutions, power regulatory institutions and other institutions, which provide trading services or implement supervision and regulation for the operation of the power market. They are non profit-making non interest subjects and executors to ensure the orderly operation of the market, and require neutrality

after the reform of the power system, the legal relationship between power enterprises and other market subjects was adjusted

before the reform of the power system, power enterprises and power generation enterprises were in the relationship of power purchase and sale contracts, power supply and use contracts (famous contracts) with users, and power generation, supply and use were in the relationship of a single chain of double-layer sales contracts of "sell buy" - sell buy "

after deepening the reform of the power system and establishing the power market, the transmission and distribution of power is no longer the one-stop exclusive operation of power enterprises. All the power market subjects are relatively free to trade in the power market (restricted by factors such as technology and safety). The market subjects in all links of transmission and distribution establish legal relations "two by two", changing the original single chain simple trading mode, and the legal relations are more diverse and complex. In particular, power enterprises undertake the functions of transmission, distribution and power supply in the power system, and play an important pivotal and core role in the power market. The legal relationship with power generation enterprises, power distribution companies and users is more complex

between power enterprises and power generation enterprises

when power enterprises purchase electricity from power generation enterprises and resell it to users, it is still the same as the original model. Both parties sign the power purchase and sale contract to establish a sales and purchase contract relationship. When power generation enterprises directly deal with large users, power users directly purchase electricity from power generation enterprises, and both parties sign direct transaction power purchase and sale contracts. At the same time, although power enterprises do not participate in trading, they should be responsible for providing transmission and distribution services to large users and power generation enterprises, and performing the duties of transaction execution, settlement arrangement, auxiliary services, etc. they need to sign the "transmission and distribution service contract for direct transaction between large users and power generation enterprises" with large users and power generation enterprises to establish a direct transmission service contract relationship. This kind of contract is still an anonymous contract. From the perspective of the "contract law", It can be classified into a new type of transportation contract - power transportation contract. In the future, auxiliary service contracts will also have their independent legal status and can be classified as "technical service contracts"

between power enterprises and power selling enterprises

in terms of incremental distribution business investment, power enterprises and social capital investment incremental distribution power selling companies that have the right to operate distribution business form a substantial horizontal competition relationship; In terms of distribution operation, there is no direct competition due to their exclusive operation in their respective distribution areas. As transmission and distribution is a complete system, transmission and distribution, as well as distribution, have legal obligations and cooperative relations of fairness, openness and mutual support to each other. If a power selling company purchases electricity from a power generation enterprise, it needs to use the power transmission of the power enterprise to transmit electricity. The two parties sign a "power transmission and distribution service contract", which is a power transportation contract relationship, and establish a power supply service business entrustment relationship at the same time. When the power selling company withdraws, the power company will move away from the fixed fixture to continue the minimum power supply; When the self purchased electricity is insufficient, the power selling company can also purchase electricity from the power enterprise. At this time, there is a buying and selling relationship. At present, the policy allows power enterprises to engage in market-oriented power sales business, and there is a market competition relationship with power sales companies on the power sales side

the trading institution between power enterprises and power trading institutions is not restricted by its organizational form and investment relationship. It has a neutral position in the power market and is the operating institution of the market trading platform that has no interest relationship with the market trading subjects. As a power transmission and distribution service provider, power enterprises are also one of the main bodies of the power market. They are also constrained by the power trading rules, and establish a power market trading service contract relationship between them

between power enterprises and users

if users choose power supply from power enterprises, both parties still establish power supply and consumption contract relationship as before; If a power selling company is selected to supply power, the power enterprise will sign a power supply service contract with the power selling company and users, resulting in power supply business entrustment relationships such as measurement, emergency repair, maintenance, charging, settlement, customer service, etc. When the user interrupts the contractual relationship with the power selling company, the power enterprise must guarantee the minimum power supply and perform the compulsory contracting obligation

an administrative legal relationship between supervision and regulated is formed between power enterprises and regulators. Power enterprises consciously accept supervision, and the supervision content is more extensive and in-depth than before. They pay more attention to the strict supervision of power enterprises in the aspects of fair and non discriminatory opening of electricity, fair and non differentiated services to all kinds of market entities and users, and the legal and compliant development of power transmission and distribution and power sales business

02 legal positioning of power enterprises after the reform of the power system

before the reform of the power system, power enterprises implemented the integrated operation of transmission, distribution and sale for a long time, "independent purchase and sale", which is not only the buyer and transporter of power, but also the single seller, retail seller and technical service provider of power, the "market operator" of the whole chain of the power industry, and the "middleman" between power generation enterprises and end users. This reform strengthens the control over the transmission and distribution links of natural monopoly, liberalizes the incremental distribution and power sales sides, introduces competition, separates monopoly and competition links, and makes a major adjustment to the legal positioning of power enterprises. Power enterprises become enterprises that have power transmission and distribution operation rights, undertake the minimum power supply services in their power supply business areas, and fulfill the basic requirements of power supply

in terms of power transmission industry chain,

"single buyer single seller" will be transformed into "multi buyer multi seller", and power enterprises will no longer be the only buyer of power goods and the only seller. The power sales market will be opened to power generation enterprises, large users and power sales companies to form competition, and social capital will be introduced in the form of mixed ownership to participate in the distribution business. Power enterprises will pay more attention to the power transmission and distribution business, be responsible for the system security, transmission and distribution, operation scheduling and power investment construction of electricity, and undertake the power fee settlement of market entities to ensure power security

in terms of business model

because of "controlling the middle", power enterprises will no longer take the above and sales price difference as the main source of income, but collect transmission and distribution fees (including line loss and cross subsidy) from trading entities according to the "permitted cost plus reasonable income" approved by the state. The electricity price of power generation enterprises and the sales price of power selling companies are generated by market players such as power generation, power sales and power consumption through the market transaction price mechanism (except for users with guaranteed power supply), which directly reflects the scarcity of power resources and the relationship between market supply and demand

in terms of monopoly position

break the vertically integrated monopoly operation mode (before the reform, the plants have been separated and the transmission, distribution and sale have been integrated), separate the power generation and sale links from the transmission network and open up to social capital for competition. Power enterprises have changed from the original natural monopoly of the power market to the main body of natural monopoly and partial market competition, and participate in the investment and operation of incremental distribution business and the market competition of power sale business

in terms of main business

power enterprises, as transmission and distribution operators and minimum guaranteed power suppliers, add minimum guaranteed power supply service responsibilities on the basis of fulfilling the original basic obligations of universal service and ensuring power safety. At the same time, engaging in network transmission and distribution business based on natural monopoly has more important obligations, such as opening electricity fairly and without discrimination, serving other market players fairly, and cultivating a fair electricity market environment

03 changes in the main business of power enterprises after the reform of the power system

changes in the business of power enterprises after the reform of the power system are mainly reflected in the following seven aspects:

providing universal power services and ensuring basic power supply

power enterprises should ensure that they provide universal power services to all kinds of users in the power supply business area, with expanded service objects and contents, and higher requirements. First, scientifically and reasonably prepare electricity planning, develop electricity, be responsible for transmission and distribution construction, operation and maintenance, and realize functions for various main 3 processes: experimental process, measurement, display, etc. are realized by single chip microcomputer; Provide universal services to ensure that users have fair access to electricity. Second, supply power to end users in accordance with legal requirements to ensure that similar users are of the same quality. Users who do not directly establish a power supply and consumption contract relationship enjoy the same treatment in terms of power supply services and the implementation of transmission and distribution tariffs. Third, disclose the operation, maintenance, power supply quality, service quality and other information of transmission and distribution networks

provide all kinds of power supply services to market entities without discrimination

power enterprises should provide all kinds of power supply services such as installation, measurement, meter reading, maintenance and charging to all kinds of market entities without discrimination. Users who deal directly with power generation enterprises and users of power selling companies shall be guaranteed to enjoy power supply services with the same treatment conditions and without discrimination

provide minimum power supply services

minimum power supply is the ultimate, is the meaning of social utilities, and is the legal obligation of power enterprises newly added with the reform and power selling companies that have obtained incremental distribution operation rights. Starting the minimum guarantee service must be based on the premise of ensuring electrical safety and not affecting the normal power supply of other fatigue test households used to complete the sample. When the original power selling (distribution) company withdraws and no other enterprise inherits its business, the power enterprise shall perform the compulsory contracting obligation and unconditionally and immediately guarantee the minimum power supply (distribution). The new cost of guaranteed power supply should be channeled by establishing a reasonable electricity price policy or solved through a market-oriented mechanism

ensure the fair and non discriminatory opening of electricity

the state will inevitably implement an equal and compulsory network opening policy, strengthen the control of transmission and distribution operators' abuse of monopoly position and network advantage, and the control of electric interconnection and

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