Private Capital To Participate In BOT Projects Legal Issues

When the developing countries use the pattern of BOT project to build the fundamental facilities, they always connect it with attracting the foreign capital. It makes the people think the pattern of BOT is the professional way to attract the foreign capital. In the article, we want to make it clear that BOT project is not only a way to attract the foreign capital. It must the way which our nation's nongovernmental capital especially the private company enter the public area by analyzing the development history and the meaning of law. The article analyzes some important legal problems by the angle of nongovernmental capital entering the BOT project.The article point out that the nongovernmental capital attend the BOT project involves such legal relationship as the government, the project promoter, the projects company, the project lender, the project contractor and so on. It also analyzes their legal relationship and point out the way of BOT project's legal character.Theorists have many arguments about the franchise agreement. The article think the BOT franchise agreement is a mode of the administrative contract. It belongs to the public law agreement. Defining the BOT franchise agreement is the administrative contract is not only practical but also meet the situation of our nation. IT is the same style that such countries as the French make the government agreement as the administrative contract. Whatever, the defining has the rhetorical characteristic meaning. In our country, the administrative and civil contract in one system is the fractious of planning economic system.The thesis express the promising of the government including the back-up assurance investment remuneration promising, accommodation promising, limited competition promising, nationalization-on promising and so on. We must point out that the government guarantee the BOT project is not the pledge of obligation but the action of public law. The most important character of the BOT project is the attending of the government which is different with other ways of investment. It is necessary that the government make the assurance. It must be limited in the way and the contents.By researching the legislative practical in the foreign countries and Hong Kong, the article analyzing the legislative situation and the problem in our nation, we can know that the legislative level is not high and also have the different acknowledgement in the mode of the BOT project and the conflicts with the government assurance. The thesis give the concrete advertisement that accelerating the legislative of the BOT project and perfect the system of the BOT project.