Study On The Nature Of PPP Contract

PPP(Short of Public-Private Partnership)is a kind of new mode that the government provides the public basic products or services to the society by establishing the long-term partnership with the social capital provider.Compared with the traditional supply mode of public goods or services,it has some advantages.However,there are many disputes on the nature of PPP contract in the theory and practice.In practice,the nature of the contract has a substantial impact on the insistence of the basic law principles,the application of specific rules and the selection of dispute resolutions.Therefore,it is very necessary and urgent to make clear the nature of PPP contract and improve the corresponding dispute settlement mechanism.PPP contract includes three types:franchise agreement,government purchase contract and mixed contract.Among them,the government purchase contract is a kind of civil contract and there is no big controversy on this viewpoint.However,there is still no finalizing on the nature of the PPP franchise agreement.There are many theories such as the administrative contract theory,civil contract theory,economic contract theory and mixed contract theory.However,there are some defects in the civil contract theory,for example,the transaction behavior in the PPP franchise agreement is a means to achieve the purpose of the contract,rather than the purpose of the contract itself;The basic equivalence of the rights and obligations of both parties in a contract is the basis of every kind of contract,and should not be used as the characteristic of civil contracts;The administrative acts involved in the franchise agreement serves the public interest as well as serves the civil contract;The civil contract theory considers the purpose of attracting the social capital,ignoring the government's interests;The viewpoint that civil contract theory is beneficial to the dispute settlement is using the conclusion to prove the conclusion,which has the logic confusion.There are also some shortcomings in the economic contract theory: firstly,it confuses the franchise and the state intervention;Secondly,the economic contract theory lacks of legislative basis.To the theory of the mixed contract,this view maybe just a baseless creation,which panders to the PPP franchise agreement's characters that has both public and private natures.In fact,there is no solid theoretical support and evidence to this theory.To determine the nature of PPP franchise agreements,we must fully consider the qualitative factors that may impact the nature of PPP franchise agreements.Based on the factor that the PPP franchise agreements has both the nature of public law and private law,and has the essential target of realizing the public welfare as well as the administrative privileges as an administrative organ,consider it as an administrative contract is more reasonable.According to the theory of administrative contract,it can also verify the nature of the PPP franchise agreement,that is to say,the PPP franchise agreement is fully consistent with the basic characteristics of the administrative contract.First of all,the PPP franchise agreement is a product of the integration of public and private law,which is consistent with the theory of administrative contract,to a certain extent,it can take into account the characteristics of the integration of public and private law,but the civil contract can not.Secondly,through the case analysis,we can see that the application rules of PPP franchising project are similar to the basic principles of administrative law,and have a high degree of consistency in the judicial practice.Again,PPP franchise agreements are in line with the basic characteristics of the administrative contract in the subject,purpose,content and dispute settlement,it essentially belongs to the administrative behavior which the administrative subject implements for its the social management objectives.Finally,litigations brought by citizens,legal personalities and other social organizations for the administrative subject does not perform,fails to perform or illegally modify and terminate the franchise agreement,have been explicitly included in the scope of the administrative litigation China.Therefore,it is of theoretical basis and legal basis to define the PPP franchise agreement as an administrative contract.In summary,about the nature of PPP contract,we can draw the following conclusions: PPP contract includes three types: franchise agreement,government purchase contract and mixed contract,among which,government purchase contract is a civil contract,franchise agreement is an administrative contract.