Study On The Legal Problems And Solutions Of BOT In China

BOT is the abbreviation of Build-Operate-Transfer. It's a new investing and financing way which appeared in 1980s in the world. It can bring private capital into the infrastructure construction of every city; alleviate the fiscal burden of government; reduce the financial risk of government and improve the efficiency of projects, so, it has been more and more applied by all the countries especially the developing countries. China is the biggest developing country in the world and its economy has been growing fast since it joined WTO. BOT is now being paid more and more attention by the government of China. And in reality, BOT has been used to many projects, including power station; airport; road; sewage treatment plant; etc. BOT is playing an important role of infrastructure construction of China along with some projects has been started. But, now, the investment environment of China is not encouraging the development of BOT and to some extent it's becoming a barrier to the development of BOT.The object of this thesis is the legal problem and their solutions of BOT. But, the thesis not only analyses problems from legal environment, but also from the whole investment environment of China, including the political environment, economic environment and legal environment. The purpose of the thesis is to intensively research several key problems, and then give some advices of these problems. This paper is composed by six parts. The first part introduces BOT; the second part brings forward the main problems of BOT in China; the third part analyses the legal environment of BOT in China, and then give some prescriptions.The first part introduces the meaning and nature of BOT at beginning. Then it arrives at a conclusion that BOT is a kind of new and special investing and financing way from analyses those different views. It also introduces the main participants; the legal relationships between them and the special legal characters of BOT. And then, it traces back the developing process and sums up reasons for the generation of BOT. The development of BOT in China has also been minutely dissected in this part. It separates twenty years into three stages, which has described the developing process of BOT in China step by step. After affirming the benefits which are brought by BOT to China, we can see the harmful situation of China through several typical BOT cases. It means that there are so many problems in the practices of BOT which have damaged the participants. But, it doesn't mean that China doesn't need BOT from now on. So, this part discusses the necessities of the continuation of BOT in China at last.The second part analyses the legal problems of BOT in China now. It focuses on three legal problems which are the legal institution problem, the financing guarantee problem and government problem of BOT. First, it points out the deficit of the specialized law of the BOT and the main deficiencies of present laws of BOT in our country. These deficiencies are the point reasons of disputes of BOT projects. Then this part analyses the inadaptability between the guarantee system and the requirement of financing guarantee of BOT in China. The special financing guarantee mode is one of the particularities of BOT, which is also the vital factor in BOT projects. So, how to improve our guarantee legal system of our country is becoming the first imperative. At last, this part talks about the important position of the government in BOT projects as a participant. Because of the immaturity of political and economic system, the instability of public policy, the high political risk and the deficient of make first-phase preparations, our government doesn't play right role at the right position. This has obstructed many BOT projects.The third part is mainly about the legal advices to those three problems discussing at second part. First, it proposes a legislative plan and legal framework of BOT in China by analyzing BOT legislative practice of other countries and the basic condition of our country. And it also researches the contents of the BOT law, including the extent of projects, responsibility organ, concession agreement, mercantile rate of return, the possession of projects, the range of the investment subject and the system of risk sharing. Then this part suggests some advices for the financing guarantee system of BOT projects. At last, it thinks the government should recognize its status clearly and restrict its behaviors in order to play right roles.