On Bot Concession Agreement Administrative Priority To Benefit The Legal Control

BOT (Build-Operate-Transfer) project, as a kind of mode of operation, has shown tremendous superiority in the area of construction of infrastructure since it has been introduced. It finances public infrastructure and construction undertaken by the private sector, not only effectively reduces the government's financial burden, shares the risk, but also provides a good opportunity for private capital to approach the public territory of infrastructure.This article briefly described the background, the concept, and the characteristics of the BOT project which has been widely applied all over the world, including China. However, the legal environment of BOT in our country are not optimistic, the article conducted a brief analysis of the problems. As to the core of BOT legal relationship, the basic agreement of BOT project-the BOT concession agreement, for current theories are varies on the nature of it, the article made clear its nature by analyzing from international, domestic, and civil, administrative aspects. Based on the explanation of the general theory of the Administrative priority in administrative contract and the analysis of two representative regulations summarized the five main aspects of administrative priority in BOT concession agreement. It has been shown by cases that administrative priority has often been improperly used in practice. By analyzing the reasons in legislative, administrative enforcement aspects, put forward the administrative priority in BOT concession agreement should be legally controlled. Further, there must be effective mechanism of dispute settlement as well as rights remedy.This article includes four parts:the first overviewed the conception of BOT in various legal documents, and summarized three main features of it. And briefly introduce the application and legal environment of BOT projects in China. As to the nature of the most important document of BOT projects, namely, BOT concession agreement, current difference mainly between domestic and national agreements as well as administrative and civil contracts. This article made clear that the BOT concession agreement is with the character of administrative contract in domestic law;The second part took "Beijing Urban Infrastructure Franchise Ordinance" and "Shenzhen City Wastewater Treatment Plant BOT project management" as an example, on the base of general theory of the administrative priority, summarized five aspects of administrative priority in the BOT concession agreement that administrative authority are entitled;The third part of the article described the present situation of the exercise of administrative priority in the performance of the BOT concession agreement through the following two cases:"Sichuan Zizhong Tuojiang Bridge BOT projects" and "Sichuan Qionglai C-BOT project". Tried to found out the reasons why administrative priorities are often misused;The fourth part is about the legal control of administrative priority in BOT concession agreement in both procedural and substantive exercise. This part previously discussed the controversial mechanisms of dispute settlement and then the remedy system of disputes caused by using administrative priority. And when discussing the controversy resolution and determining the scope of compensation, using some principles and methods of private law may be helpful.