Research On Privately Financed Infrastructure Projects In The Vision Of Administrative Law

As the course of urbanization accelerates gradually, the urban infrastructural investments incline to increase too. While with the further step of our country's economic system reform, the government would scale down the input to the field of urban infrastructure. Such a kind of policy can carry out the diversification of investments and make other kinds of capitals excluded financial funds obtain more opportunities. The privately financed infrastructure projects are very important to our country's construction of modernization, but it must be managed and regulated effectively. presently , the application in this aspect exposes a great many problems in our country, the most important one is the government authorities who represents the public interest haven't found its appropriate role. So it is necessary to regulate the privately financed infrastructure project in the vision of administrative law combining with international standard.Section 1 The Presentation of The Privately Financed Infrastructure ProjectThe privately financed infrastructure project is a sort of project financing and it is a financing manner that the new found project company use its assets and future income as the guaranty for fundraising .The main parties are the contracting authority,the project company,the loaners,the insurers and the project financing consultants. Its fundamental mode is BOT, an English abbreviation of build-operate-transfer. The basic train of thought is that the government or affiliated structure where the project stands supplies a type of concession agreement as the foundation of projects financing for the construction and management. The native company or foreign company act as project's investor and operator arranging financing,bearing risk,exploiting and constructing projects and making business profit at a limited period and in the end transferring the projects to relevant government institution under the arrangement. The advantage of privately financed infrastructure projects are that not only solve the problem of funds and alleviate the pressure of government finance expenditure but also in favor of promoting the project's operational efficiency and importing advanced technology and managerial experience.Section 2 Administrative Nature of Project AgreementBecause the nature of project agreement determine the law that regulates the contract, and meanwhile the application of law is indeed involved with each party's basic rights and duties, so the nature of project agreement needs to be defined. The countries in civil law system generally consider that the project agreement belongs to administrative contract no matter in theory or in practice, while countries in common law system consider it as a type of private contract .The administrative contract has its characters distinguished with civil contract .The specific embodiments are that one of parties must be public authority at least, the purpose is fulfilling the administrative responsibility and the principle is carrying through the special administrative power .This article combining the character of administrative contract and the use of two legal systems considers project agreement is a kind of administrative contract no matter in parties,contents,purpose or implementation . Moreover, it is an international convention that the arbitral clause is written in the agreement as a distinctive measure settling disputes on the incomplete occasions of law.Section 3 The Role of Government in Privately Financed Infrastructure ProjectsFor a long time ,Chinese government who acts as a single investor,constructor and regulator exerts absolute functions in infrastructure construction.Upon the traditional mode, government monopolies administrative power and both society and citizens haven't the right to participate in business of executive management. In the resent twenty years, our country has carried through the economic system reform deeply, which produces the reposition between government and society, realizing the government withdrawn gradually from the field of direct economy and public life. It needs deep thought for the government that how to change its role, in what kind of identity interfering in market and how to manage it. I think that the concept of omnipotent government must be completely abandoned and the governmental public character should be emphasized on the premise of reserving traditional role properly. In the privately financed infrastructure projects, the role of government ought to be a grantor of concession, a supporter of projects and a discharger of the contract.Section 4 The Amelioration of The Legal System of Privately Financed Infrastructure ProjectsFrom the beginning of the 1990s, BOT is paid more and more attention in our country, yet from the present situation, some international BOT projects that have already operated as experimental unit using foreign capital still cannot satisfy the social demand of development toward infrastructure and basic industries. At present stage, our country absorbs foreign capitals for the international projects operates and tests and meanwhile the domestic private capitals are observed by the local government for the large-scaled instruction. It is seen that the infrastructure projects financing has showed itself a climax of application in a new round, but we should learn from the experiences and lessons previously to perfect relevant legal system continuously.Establishing suitable and valid legal framework is the precondition that attract the private capital investing on the infrastructure. Up to now, our country hasn't such a complete legislation about privately financed infrastructure projects. Different countries select different legal patterns according to different economical situations and legal surroundings. In our country, one feasible measure is that the general format of project agreement is laid down by every national executive sector, in this way, on the one hand, it could reduce the time that enact the agreement, on the other hand, it also has a definite object in view of practical situation of different department. In legislative mode, it is better to adopt the combination of general legislation and specific legislation .When our country draw up the law, we should use the general principle and lay down specific principle according to physical circumstances. From the contents of legislation, it mainly consists of the part of general provisions; the selection of concessionaire; the content and application of project agreement and the disputes settling.A good governmental regulating system is the essential premise for the favoring circulation of privately financed infrastructure projects. so if our government is demanded for keeping pace with international standard and promoting the progress of infrastructure projects financing ,it needs to set up a suit of integrated frame of policy, build up specialized institution, standardize the administrative procedure of projects, establish reasonable structure of risk allocation and set up favorable credit mechanism. Furthermore, we also need to ameliorate the relevant system which means removing cognitional hindrance, fostering specialized personnel and professional advisory service, establishing and improving the market mechanism and the public participation mechanism.