Research On The Legal Mechanism Of Public Private Partnership

On July 31,2013,at the State Council executive meeting,Premier Li Keqiang proposed to “promote the reform of the investment and financing system,give play to the role of the market mechanism,treat all types of investment entities equally,and use franchising,investment subsidies,and government procurement services to attract private capital participates in the construction and operation of operational projects." This was seen as a signal to initiate the PPP mode.In the following six years,PPP,as a new type of cooperation model for the construction of public service and infrastructure projects,has become more evident in reducing government debt and promoting the efficiency of social resource allocation.The national finance,development and reform departments have also released a large number of policy documents to support and standardize the development of PPP projects.By the first half of 2019,there were 9,036 projects listed in the national PPP integrated information platform project management database,with an investment of 13.6 trillion yuan;There were 5,811 landing projects and an investment of 8.8 trillion yuan.However,behind the rapid development,PPP has not been well integrated with current laws,regulations and policy documents,and the problems exposed at the practical level are becoming more and more complicated.At the same time,at the theoretical level,the academic community has not yet conducted a legal system research on the PPP model.Therefore,this paper uses comparative analysis,empirical analysis and other research methods to summarize,collate and analyze the key legal issues involved in PPP projects at the theoretical and practical levels,finds the mechanism and reasons for its formation,tries to draw conclusions and make suggestions to play a guiding role in the development of PPP norms and dispute resolution.In addition to the introduction and conclusions,the main body of this paper is divided into six chapters.The main contents of each chapter are as follows:The first chapter is "Basic Theory of PPP".This chapter is the basic chapter of the whole text.Firstly,starting from the concept of PPP,PPP is broadly positioned as a collection of public-private partnerships including franchise agreements and government purchase services,,government and social capital cooperation agreements and discusses its classification and characteristics and the nature of the law.In addition,the PPP model has institutional values that differ from traditional project construction models in the public service and infrastructure sectors: First,it helps to reduce local debt pressure;Second,it helps to improve the quality and efficiency of public service provision;Third,it helps accelerate the transformation of government functions and deepen supply-side structural reforms.The chapter concludes with a description of the basic legal principles embodied in the PPP project.The second chapter is "the discussion of PPP entry barrier".In recent years,in the project identification and preparation stage,a considerable part of China's PPP projects have risk of violations.These risks are either caused by irregular operations or exploited the bug of existing policies and regulations.To know the actual cause,the imperfections of the access rules and the lack of supervision are the essence of the chaos of the project.This chapter intends to solve three problems by combing and analyzing the existing rule system: The first is how to identify PPP projects;Second,the conditions for compliance of the project company;Third,what kind of the body of government party is appropriate.This chapter advocates that PPP project identification should follow the principle of adhering to public welfare orientation and preventing debt risk;In the case that the project company's project capital has been limited,the payment of registered capital tends to be flexible,but there should be restrictions on debt financing;The body of government party should distinguish between the implementing agencies and government-funded representatives,and the government-funded representatives should not have actual control and management rights.The third chapter is "the boundary of the rights and obligations of the PPP body." In the whole life cycle of a PPP project,there are many participants,and each subject plays a different role and plays a special role.Different roles correspond to different rights and obligations.This is an important factor in studying the legal relationship of PPP,and also the basis for studying the PPP regulatory rules and accountability system.Therefore,this chapter selects the three main participants of the government,project companies and intermediaries,and deeply analyzes the boundaries of the main behaviors from the sources and forms of rights,the design and scope of the obligations.For a government with dual or even multiple roles,the definition of its rights and obligations changes with the transformation of roles,and it is easy to be confused at the level of practice.This section attempts to divide the role of government entities and standardize its rights and obligations in various stages of the project.In addition,this chapter believes that the project company should not be unfairly intervened by the government.It enjoys the right to self-government on the bases of the regulations our country's law on companies,and enjoys the franchise,income and relief rights granted by the contract based on the PPP agreement.The above two entities must bear the corresponding legal consequences when they violate the statutory or agreed obligations.As an intermediary between the government and the project company,the intermediary agency has the role of information transmission and local supervision.The design of its legal responsibility can refer to the provisions of the Contract Law on intermediary responsibility.Chapter 4 “PPP Regulations".The PPP project is mainly divided into five major stages: project identification,project preparation,project procurement,project implementation,and project handover.At each stage,the government and the social capital have complex legal relationships and procedures.Various systems are miscellaneous,entangled,many contradictions and conflicts accompany them.Therefore,research on PPP regulatory rules is extremely necessary.This chapter stands at the perspective of economic law research,discusses the control and supervision of public policies and laws and regulations on the main body and behavior of PPP market,mainly solves how to embed the regulatory mechanism in the existing system,while avoiding the generation of conflicts with other systems.Through the analysis of existing laws and regulations,management systems,and analysis of regulatory concepts,principles,frameworks and tools,the paper tries to find and construct a regulatory implementation path that can make PPP projects smoothly promoted at the legal and policy levels.Under the regulatory framework of “one total multiple points”,a variety of complementary regulatory methods are used to intervene in the company's ability to exercise supervision.Chapter 5 "PPP Imputation System".Because the PPP project involves many stakeholders and the environment is complex,it is often impossible to clearly determine the attribution of legal liability in the event of disputes.It is necessary to find the theoretical support point of the PPP liability system under the existing mature liability system.This chapter is the key chapter of this paper.Based on the above research,this chapter discusses the establishment of PPP imputation system,and studies respectively the specific principles of liability and responsibility from the perspectives of government,intermediary organizations and project companies.It is recommended to first clarify the principle of imputation,clarify the legal responsibilities that each party must bear,and then rely on its responsibilities to use the Securities Law,the Contract Law,the Tort Liability Law and other legal norms for reference to conduct imputation.Chapter 6 "PPP financing path selection".Data shows that financing difficulties have become the main culprit in the failure of PPP projects,and the financing problem runs through the whole life week of PPP projects.There are various financing methods in the establishment,construction,operation and exit periods of PPP projects to choose from,each financing method has its own advantages and disadvantages and necessary conditions.At this stage,debt financing is still the largest financing model,but its development faces many difficulties.The uncertainty of the ownership of the guarantee tender,the uncertainty of the quality of the project income right and the difficulty of the realization mode of real rights granted by way of security make the realization of guaranteed note lacks legal support.Similarly,in the combination of PPP project and asset securitization,the main basic asset,the project income right,is controversial at the legal attribute,transferability,independence and the effective date of the transfer.In addition,SPV does not have legal subject status.It is difficult for the basic assets to be completely sold in real terms,which hinders the realization of bankruptcy isolation.This chapter recognizes the “future creditor” status of the right to earnings,supports the “effectiveness of contract signing”,affirms the significance of the government financing guarantee institution and the re-guarantee system,and advocates that the problems existing in the financing should be stipulated in the contract as much as possible to reduce the occurrence of risks.