Research On Relevant Legal Problems Of BOT

Infrastructure construction, such as energy, transportation has been"bottleneck"in national economic development in our country. In order to change the present situation, and to attract private funds and foreign private funds to invest on infrastructure construction in our country, our country induce a new private direct investment style named BOT style in the mid-1980s. BOT, the abbreviated form of "build, operate, and transfer", is a new form of international investment and financing. BOT can be defined in such a way: a host nation conclude and sign an agreement of concession in which the state confer the concession of investing, financing, operating and maintaining of a large infrastructure to investors. Investors pay back the debt of the project and recover the investment by their income from operating. When the concession agreement terminates, the investors must transfer the infrastructure to the host nation.The application of BOT style helps to resolve the problem of capital shortage for infrastructure construction. But in our country, the people have no idea about the BOT style and there are still many disagreements on some essential issues. whether the concession agreement is international contract or domestic contract, whether it is the contract of the public law or the contract of the private law, whether offering government guarantee or not and the characters and the contents of the government guarantee. And there does not exist a systemic theory of BOT. Meanwhile, There are some differences between current legislation and the law guarantee required by BOT style. Such things have not only blocked the implement of BOT, but also seriously restricted the development of infrastructure construction in our country. For resolving these problem and exerting the effect of BOT effectively, it is very necessary to do special research on BOT. The article will research the disagreement in the theory and practice, and give some advice about the perfection of the correlation law on BOT in our country.This article consists of three parts, which is respectively concerned about the basic legal structures of the BOT style, the risk of BOT style and government guarantee, the legislative status and perfection of BOT style.In chapter one, it is the basic legal structures of the BOT style. In the first, it is an introduction of the character of BOT style. Then it explains the legal relationship participant hosts in BOT style. At last, the thesis introduces a series of contracts. In the contracts, emphasis is concession agreement of BOT, concluding the concept, content and character of concession agreement. Albeit there are still many disagreement about the character of concession agreement in the theory, the author considers and expound concession agreement is administrative contract in the domestic in this part. And then, the thesis respectively introduce other contracts, such as equity participation contract, insurance contract, product purchase contract etc.Chapter two is the risk of BOT style and government guarantee. Because of the enormous risks of BOT project, analysis is necessary to avoid them. In this chapter, first, it introduced various risks in the implementation process of BOT, such as commercial risks, political risks and natural risks. The principle and the specific ways to share between the parties in these risks are described. It is precisely because of the risks of the BOT project, investors ask the government to support by offering government guarantee. Whether government guarantee or not and to what extent it guarantees is related to the success or failure of projects. So, in this part, the author introduces the necessary of government guarantee in our country, the content and the character of government guarantee, then distinguishes government guarantee from the guarantee in civil law through discussion.Chapter three is the legislative status and perfection of BOT style. Firstly, it is an introduction of the legislative status of BOT in our country. And then, it is analysis of the current legislation's deficiency, such as the low of legal hierarchy, the simpleness of content, lots of legislative gaps which not only fail to form a complete legal system, but also conflict with each other in the different contents. Secondly, based of the consideration of perfect BOT legislation in our country, the author make a number of own advice about it. According to the author, there must be legislative principlesthe such as the safeguard state sovereignty and the public interest, equality and mutual benefit, respect for international conventions and norms of executive behavior in BOT legislation. There are three models of BOT legislation in the world: The first is special legislation about BOT. The second is legislation on single project. The third is non-special legislation about BOT, but to regulate with the existing laws. According to our national conditions and the existing legal situation, the author thinks our country's BOT legislation should use the first model. The main legislative must be the National People's Congress or its Standing Committee. The following viewpoints in the legislative content area are based on learning from the predecessor and collection of a lot of materials. There has not been the specialized legislation about BOT now. Following the discussion in the front of the paper, BOT concession agreement belong to the administrative contract. But there are also no specialized legislation to norm the administrative contract in our country. In this way, once the parties in the BOT contract dispute, the court usually does not accept the case because of the lack of legal basis. Meanwhile, BOT legislation is a complex and enormous project which can be completed very quickly. Before the accomplishment of the specialized BOT legislation, how to deal with the dissension in the BOT contract parties is a problem which cannot be avoided in the present conditions. There are two kind of contract of BOT: one is the content which belongs to administrative acts and administractive power, the other one belongs to rights and obligations of entities. Correspondingly, the dissensions from two kind of contract is also divided into the administrative one and the civil one. There are different character in different legal dissensions which should be deal with using the corresponding legal separately. Meanwhile, the parties with dissensions could settle the dispute and solve the problem of the inadequate BOT legislation temporarily through consultation, mediation, conciliation, arbitration, administrative reconsideration, etc.