The Study On The Law Problems Arising From The BOT's Application To The Building Of Port Facilities

Compared to other means such as joint venture, there are many advantages if BOT is applied to the building of port facilities, but law problems will arise. After analyzing the basic issues, the paper mainly talks about the concession agreement, the warranty of the government and the ownership of the port facilities. At the end of the paper, the author gives some advice for legislative.The port facilities are structures which are built by human in order to realize the functions of the port. It is collective objectives and has some features of the public facilities. BOT is a method that private capital put into the public facilities, during a specific period, the project company operates the public facilities and when the time expires, all the facilities will be delivered to the state. The concession agreement which refers to many issues such as the right and obligation between the clients and the applicable law is the base of BOT. In the paper, the author hold the opinion that the concession agreement is a domestic agreement, not an international, a civil agreement and some content has administrative features. With regarding to the party on behalf of the nation, the author holds the opinion that the department governing the port facilities is proper while not the central government. Under the law in our nation, with regarding to the question that warranty of the government is effective or not, the author thinks the government warranty is a promise about obligation which is different from the civil guarantee. For the characters of the port establishment, the buying agreement is not suitable under BOT's application to port facilities. With regarding to the ownership of the port facilities, it should on the basis of the categories. The movable property should be thought owned by the project company, the public unmovable property should be owned by the nation, the others should be owned by the project company and the nation. At the end of the paper, the author issues some legislative proposals.