Study On The Legal Issues Of China's Franchise Agreement

The government concession agreement (also called government franchise contract,Public Utilities Franchise Contract) as a special administrative contract, the government often used to achieve the effectiveness of the government, to replace the traditional contractual cooperation control means to achieve administrative cooperation. Investors or operators by administrative organs and obtain the exclusive monopoly rights or in administrative organs, supervision and management, obtain the franchise enterprises through direct provision of public goods and services to the public, to fulfill the agreement, collect fees to get revenue from users. This agreement is widely used in today's social life. The new revision of the administrative litigation law introduced government concession agreement concept, and will be incorporated into the scope of administrative litigation, made specific provisions of laws and regulations, for the prosecution deadline and the limitation of action, jurisdiction of the court, but the government chartered legal attribute, content, business disputes the agreement resolved, whether the judicial interpretation of the Supreme People's court or the administrative litigation law did not make a specific interpretation, between different provisions related regulations and rules and even contradictions still exist,deficiencies and contradictions of legislation leads to the practical difficulties of government concession agreement, the theoretical study of government concession agreement is fragmented exists, the system, become the bottleneck of the development of the theory of comprehensive.In view of the lack and contradiction of the legislation and the problems existing in the application of judicial practice, for example, it is easy to regard such agreement as a civil contract, it is easy to define it as a unilateral administrative act. Moreover,legislation for the government franchise agreement for the stage of qualitative administrative agreement, and the legal attribute of government concession agreement concluded the agreement did not make provisions, at the same time in the stage of concluding the process of a breach of obligations should bear the responsibility? What are the responsibilities? Legislation did not provide for this. Civil cases by the Supreme People's Court issued the Regulations (Trial) will belong to the government franchise agreement with the electricity, water and gas contract disputes into the category of civil cases, and the new revision of the administrative litigation law the government concession agreement into the scope of administrative litigation conflicts,resulting in the judicial application the confusion, therefore need to correctly interpret the legislation, also need to improve the relevant legislation. Analysis of the status quo of legal problems for our government concession agreement, applicable, legal problems, including protocol agreement agreement protocol, alteration and termination of the subject and the exercise conditions and agreement to remedy the problem, the author analysis through case analysis, empirical analysis, logic, to study the problems of government concession agreement legislation the perfect place, need the government concession agreement legislation, legal interpretation and provide useful guidance for government related cases of the franchise agreement.