Legal Restrictions On Government's Unilateral Changes Of PPP Agreement

The PPP protocol belongs to a kind of administrative agreements,which is a combination of administrative action and act of agreement.It is also the combination of the power factor of public law and the right factor of private law.Before the amendment to the Administrative Procedure Law(2015,the following),there was always a disagreement as to whether the case of government franchise agreements would apply to administrative litigation cases."Administrative Procedure Law" stipulate that citizens,legal persons or other organizations have right to bring a suitif they consider that the executive authorities do not comply with the law,or not in accordance with the provisions of the implementation or illegal changing or discharging government franchise agreement.This means that the PPP protocol as a kind of administrative agreements should be included in the scope of administrative proceedings.Although in accordance with the "Administrative Procedure Law" of the provisions of the PPP agreement is the scope of the administrative proceedings,but there are still exist many problems in practice.This article introduces PPP as the mode of public-private cooperation,which refers to the government and private capital both in the voluntary principle,on the basis of equality and mutual benefit,sharing the risk and responsibility of project construction,getting the most benefit as the main goal of the cooperation model.The model is widely used in various areas of infrastructures in China,but there are a lot of PPP disputes in practice.Therefore,after clarifying the administrative nature of the PPP agreement,We can put forward that this paper needs to solve the problems caused by the government unilaterally changethe PPP project which leads to impact of social capital interests by analyzing the three cases of failure in the case of Jiangyang land consolidation case,Baotou hundred kilometers highway case,Zhangjiajie "three districts,one lake and one river" caseThe second part starts from the multi-role of the government in the PPP project,analyzes the role of the government as the maker and the implementer of the PPP project,the purchaser and the provider of the public service,the coordinator of the interest relationships and the supervisor of the public service,that is,the public-private parties of the PPP agreement have the relationship between managing and being managed,so the government also has the administrative unilateral power in the PPP agreement,which can unilaterally change or discharge the PPP agreement when necessary.A variety of risks in a PPP project can lead to disputes,but the right of the administrative entity to change the PPP agreement must be available under the applicable conditions,such as serious violations of social capital,changes in circumstances or force majeure,the impact of public interests,which is the main condition of the government unilaterally changethe PPP agreement.In the third part,the author puts forward the definition of the scope of public interest in PPP agreement.First,from the perspective of the relationship between the executive and the public interest,the public interest is the main reason for the government's unilateral changes in the PPP agreement.And then through the public interest of the uncertainty,openness,non-profit and other characteristics,and then discuss it in the problem of the substantive law and court decisions in the problem.Finally,it discusses that the government need to abide by the principle of justice,fairness,equality of suit,honesty and trust protection,safeguarding public interest and interest measure and proportion principle when unilaterally change the PPP agreement,and draws the way of restricting the unilateral change of government,including two aspects,which is,the procedural restrictions before changing the PPP agreement and administrative relief after changes in the PPP agreement.First of all,the government needs to put forward apply before unilaterally changethe PPP agreement.to the same level of people's congresses or local people's governments,and then publish a notice and listen to the views of stakeholders in the way of hearing system,and ultimately make decisions.In addition to the procedural restrictions before the changes,the means of administrative remedies need to be added in the process of mediations or judicial review onthe occur of disputes.Meanwhile,the government should make appropriate compensation to social capital in the reason of the government's unilateral changethe PPP agreement.