The Promotion Of The Institution For Public Private Partnership As A Way To Invest Public Products

Public-Private-Partnership has been widely used all over the world and obtained good results.In order to solve the dilemma of the local government debts,attract private capital,optimize the allocation of social resources,and change the way of the public products providing,China started its practices of the Public-Private-Partnership pattern from the top to down.Taking the dual role that Public-Private-Partnership played in the government and relevant concepts on Economic Law into consideration,the first part of the essay legally analyzed the regulation of the Public-Private-Partnership and cleared the basic theory under such mode via definition and classification to the Public-Private-Partnership,clearance its fundamental,comments on its strengths and weaknesses.The second part introduced the situation and approval process of Line 1,Hangzhou Metro,and the legal system environment during the construction and operation of Line 1.The detailed operation process of Public-Private-Partnership on Line 1 also had been briefly described.The evaluation of the Public-Private-Partnership was given on this part by the summarization of its four general standards on project operation which exactly practiced on the Line 1.Based on the experience of the Line 1,Hangzhou Metro,the third part analyzed the current situation in legal system regarding to the Public-Private-Partnership pattern.Firstly,it determined that the operation of Public-Private-Partnership pattern challenged present system and concepts.Secondly,taking the investment process for analysis,it discussed the current institutional predicament and solution of the Public-PrivatePartnership pattern.In specific it included: public sector should insist on worthy evaluation and demonstration of financial capacity in project identification.Private sector should be active in projects location and accurate in their all aspects due diligence.The relevant regulations such as The Law of the People's Republic of China on Bid Invitation and Bidding and Government Procurement Law of the People's Republic of China should be applied to determine appropriate ways of purchasing in the project procurement.The procurement applied the way of invitation of tender and tender,the usual inappropriate behaviors should be classified and the reasons should be understood.When setting rights and obligations to the main participants who involved into the project,the status and roles of all participants played in the Public-Private-Partnership pattern should be cleared and reasonable set to their rights and obligations which were written in related contracts or agreements.As to the risk allocation and disputes settlement,the risk should go to the one who are most capable in risk controlling or the one who took the lowest cost for such risk.And agreed method and channel for disputes settle should be appropriate and in accordance to the nature of the contact,or the attribute of the behavior which caused such disputes and its legal relationship.As for the setting and changing of the way to exit,it should ask for the understanding to the specific situation and take the stability of the projects and the flexibility of exiting as the basic for such consideration.At last but not the least,based on the experience of Line 1,Hangzhou Metro,and current dilemma for Public-Private-Partnership pattern development,it concluded the legal situation of the pattern under current system,and raised the two types of problems existed in current relevant legal system,which are: I,the law about the Public-Private-Partnership's legal hierarchy is relatively low and haven't form a complete and unified legal system;II,current effective law cannot be full applicable during the projects operation and the combination between new and old legal system is not well figured.In order to solve the abovementioned problems,the fourth part of this paper respectively introduced and analyzed the individual legislative pattern of Public-PrivatePartnership in the United States,the general legislative pattern in Taiwan,China,and the pattern in the EU which relevant provision is non-specialized but scattered in related laws.This paper summarized the advantages and disadvantages of the Public-PrivatePartnership legal system designed in overseas countries and regions,and proposed the possible legislative pattern and institutional direction of Public-Private-Partnership regulation in China.Based on the mentioned analysis,the fifth part focused on the suggestion to forward the perfection of the law available to the Public-Private-Partnership pattern.First of all,the legislative model should be determined,and a complete and unified law system should be built where the relationship between laws and the regulatory means such as policies is definite while the operability of the rules and joint with the previous rules are took into consideration.Secondly,the rights and obligations configured between the public and private sectors should be fairly and reasonably.For the public sector,because it is the manager of public affairs and project participants at the same time,it has a dual power and obligations.For the private sector,the core of the rights and obligations are the provisions written in the contract,the supervision to public power and the right to gain relief.Thirdly,the synergistic application among various legal departments should be coordinated.On the basis of the economic law attribute of cooperative operation contract applied in Public-Private-Partnership pattern,the principles and articles of Economic Law should be more applied in the macroscopic level while the Civil Law and Administrative Law in microcosmic level.Finally,the assortative system for the pattern operation should be established and optimized which include: system of information disclosure,involving the significance and present situation of this system and the path to establish and optimize it;system of investment supervision,involving the national security investigation system if overseas capital is participated into the project and anti-monopoly system to command administration authorities and protect competition;the system to forward the financing facilitation,including the channels approach for financing and the control on government debt.Stated thus,it gives a vison on the application of Public-Private-Partnership pattern after the optimization and promotion in all aspects of legal systems applied for the pattern as an investment method available for public products.This paper applied the method of positive analysis to elaborate the institutional improvement of Public-Private-Partnership pattern as an investment manner available for public products.From the aspect of theory,this paper developed its concentration from the facts,which included but not limited the involved participants,contract attribute,and the simple abroad experience reference,to the possibility of the system design and application of the Public-Private-Partnership pattern,and this could contribute to the further research and optimization of its theory study,as well as the theoretical agreement and creation on system in the circle.From the aspect of practice,the presentation of this paper was based on the experience of the Metro Line 1 in Hangzhou,the followed conclusions and the route could be guidable to future Public-Private-Partnership projects.