The Study On The BOT Concession Agreement From The Perspective Of Administrative Law

Build-Operate-Transfer,BOT in short,is translated into "Build-Operate-Transfer"in Chinese,which mainly used in a country's public utilities and infrastructure areas.BOT investment and financing model plays a critical role in reducing the financial burden of government departments,attracting social capital to the construction of public utilities and infrastructure,and propelling the rapid development of public services in China.BOT concession agreement,however,plays a fundamental role in the operation of the entire BOT project which is complex and professional.This thesis is divided into four chapters.The first chapter gives a brief summary of the connotation and characteristics of the BOT project.Through summarizing the connotation of BOT project at both home and abroad,three main characteristics of BOT project are concluded.In addition,it analyzes the connection and differences between BOT and PPP by using the comparative research method,and points out that BOT is one of common modes of PPP.However,compared to narrow-sense PPP,the BOT model requires a higher government involvement and a stronger administrative power.Based on this,the meaning of the BOT concession agreement and its core role in the entire BOT project were drawn out.The second chapter defines the legal nature of the BOT concession agreement.At present,the theoretical controversy over the nature of the BOT concession agreement among scholars is that the concession agreement belongs to economic contract,civil commercial contract or administrative contract.The author analyzes these three views,and clarifies that the BOT franchise agreement belongs to the administrative contract in nature.The third chapter analyzes the role of the government in the BOT concession agreement.The government has a dual identity in the BOT project.On the one hand,the government is a party to the concession agreement;on the other hand,the government is the manager of public affairs.Based on the nature of the BOT concession agreement and the dual identity of the government,the government has certain administrative prior rights in the BOT concession agreement to protect the social public interests.Its rights reflected that the government has the choice right about the counterparty of the BOT concession agreement,that it guide and supervise the performance of the agreement,that it has the right about unilateral change and release of the agreement and the sanction right of counterparties to the agreement.In addition,BOT project in itself has various risks,so government,to demonstrate its support for project construction,has to make some preferential and convenient commitments to investors who has less confidence about the project.But what should be clear is that the government's guarantees should be considered as a performance one which is different from that in the security law.The fourth chapter is about the protection and relief system during the implementation of BOT concession agreement.Some misconduct behavior may appear in the implementation of administrative prior rights and government guarantee.To avoid above mentioned problems,author puts forward the principles which government should follow in the exercising the administrative prior rights and government guarantee.In addition,as for the disputes arising from the concession agreement,the author presents the remedies besides judiciary such as negotiation and conciliation,administrative arbitration and so on,and discusses how to connect with the administrative litigation law.