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Research On Typifying The PPP Contract As A Named Contract

Posted on:2019-05-14Degree:DoctorType:Dissertation
Country:ChinaCandidate:H SuFull Text:PDF
GTID:1366330572952946Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Promoting the public private partnership(PPP)mode in areas of public service and infrastructure is the most important movement in changing public product supply,improving state governance structure,deepening the reform in administration,finance and tax,launched by CCP after the 18 th National Congress.In the latest three years,more than 7867 projects have been listed in the China PPP Center of MOF,attracting a total investment of RMB 11.8 trillion.Implementation of PPP mode in public service and infrastructure in China is leading the world.Compared with so many commenced projects and huge amount investment,we are still weak in academic research on PPP's fundamental issues such as legal nature,principle of regulation and etc.,PPP mode has not a compatible relations even conflicts with other legal sectors and statutes.The parties in PPP,depend on PPP contract to attribute rights and obligations and to connect.Therefore,properly arrange the PPP contract in Chinese legal framework is a fundamental issue for expanding the application of the mode,protecting the parties' legitimate interest and regulating the transaction in project means a lot for legal theories and practice.PPP mode derived from the trend that the state governance changes from state sovereignty theory to public service theory.The PPP contract as a consent between government,to fulfill administrative object,and the private capital,to run a profitable business.Therefore it was born with the the conflict of administrative preferentiality(administrative law)and civil fairness and equity(civil law).The fundamental issue for PPP contract is which legal sector the PPP contract is to settle in.For this issue,we shall firstly recognize that PPP contract is the typical manifestation of said “Penetration of public law into private law”,ignoring either of the public or private attribution will leads to narrow and meaningless dispute between legal sectors.At the same time,we shall respect the fact,that the countries are of different political institution,legal system,economic development,there is not a compulsory tradition,for PPP contract,it is a particular choice for any individual country.This paper led by the theory of “harmonious rule of law”.Harmonious rule of law is the inevitable requirement of modernized rule of law.At the level of legislation,we shall adjust the main points and way of coordination relatively,aiming to reach a harmony between legislation and social development;shall think highly to promote legislation of social care and public service.At the level of PPP regulated development and PPP contract compliance,we shall realize,in the system of statute and process of legal operation,harmony between right and obligation,power and right,material and procedure law and coordination in different legal sectors,legal rules and legal institutions.On methodology,based on justification that regulated by administrative law is the franchising contract not the PPP contract,explains that franchising is merely a mode of public and private partnership(PPP),i.e.mode of PPP which completely paid by government need not franchising;when designs the terms of typified PPP contract,this paper tries to legislate.On choosing the theoretical instrument,applying the “proximate cause theory” in Anglo-american and “direct executive public function doctrine” in French administrative law.Admitting PPP contract is simultaneously adjusted by both administrative and civil law,this is called “norm concurrence”.Every subdivision of PPP contract,from governmental purchase,supervision on performance,remedy for breach and etc.,each subdivision is a different legal relation,subjects to regulations of different legal sectors,and results to different outcomes.Learning from the “proximate cause theory”,intercepting the most proximate causal relation,we base on which,recognizing the principle causal relation in a legal relation,thus to determine and set the nature and attribution of a legal relation in PPP contract.Accordingly the nature of PPP contract is the consent between public and private party hand-in-hand to provide public product and service.Except for extremely necessary situation and few subdivision,the two parties are equal,many issues seemly related to administrative law can be internalized into contractual arrangement.Since then,PPP contract shall be put into civil law.Meanwhile,in accordance with“direct executive of public function doctrine”,administrative contract shall be that the public department directly involved in executive public function or the contract itself is merely a method of executive public function.There are three subdivision in PPP contract shall subject to administrative law i.e.governmental purchase,franchising and project supervision.Based on justifying that PPP contract shall subject to civil law,furthermore suggest PPP contract shall be typified as a named contract in the Civil Code,since it has the needed components of “civilization,typification and maturation”.Author also addresses on contract formation,validity,performance,remedy for breach and special rules.In the subdivision of contract formation and validity,author focuses on three issues,first,how to reflect and interpret the civil law principles such as equal,freedom of contract and honesty and credibility;second,based on “two phases theory”legal defects in governmental purchase will or not impact the formalized PPP contract;third,can PPP contract be canceled and the formal components.In the subdivision of contract performance,author researches the “administrative privilege” in unilateral revise,terminate and supervise the contract,as the representative and protector of public interest,setting the boundary and condition to initiate the privilege and the remedy standard accordingly when private party suffer loss.In the subdivision of remedy for breach,author argues the dispute resolution procedure shall be settled according to disputed object or cause of case.Disputes related to legality of formation,franchising and supervision shall be put into administrative procedure;other disputes shall all be subject to civil procedure.Meanwhile for the disputes by administrative procedure,author introduces ways of “optimizing burden of proof,mediation and involving civil rules for certain issues”.Whereas that the Professor WANG Liming and Professor LIANG Huixing have both listed PPP contract as typified named contract in Contract Chapter in their respective scholar suggestion on Civil Code(draft).This paper suggests some revisions for the aforesaid scholar suggestion in completed terms.
Keywords/Search Tags:Public private partnerships(PPP), Administrative contract, Named Contract, Governmental Franchise
PDF Full Text Request
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