BOT Contract Case Analysis

The government franchise has been a long history in developed countries.It's proved to be an innovative,standardized and more successful public-private cooperative system arrangement after introducing to our country.From 2015 to 2017,China has promulgated a number of departmental regulations and normative documents to guide cooperation in government and social capital in the public sphere.BOT,as a common mode of public-private cooperation,the government franchise has attracted more and more public attention.Meanwhile,the dispute of franchise contracts as the core of running the system are also increasing.BOT contract disputes as the starting point,combined with a number of cases and academic theories,and analysis the three aspects of the problem:First of all,about the BOT contract dispute litigation jurisdiction,the key lies in the nature of the BOT contract,and there have three different claims in academics,"civil contract theory","administrative contract theory”and "economic contract theory".The "economic contract theory" is more fit BOT contract both in public welfare and market characteristics.Learn from our country's judicial experience,the core of its judgment lies in whether the content of the contract dispute involves the rights and obligations in the sense of administrative law.Consequently,combined two aspects above and the understanding of the"People's Republic of China Administrative Procedure Law" Article 12 to determine the case should be applied administrative trial procedures.Secondly,about whether the contract has the occurrence of consultation changes,according to the relativity principle of contract and the main body and the main content of the two contracts in the case can be determined that there is without a contract change.However,based on the principle of good faith,whether the change of corporation's stock rights should inform the stakeholders can be a factor when considering the extent of contract renewal.Finally,about the recognition of the BOT contract compensation standard,first is to determine the lifting of the BOT contract belongs to the situation in the contract changes,the government should compensate the loss to the plaintiff company,the second is that the consideration of compensation standards should be guided by the principle of fairness,and gradually move closer to complete compensation,the third is that the recognition of the compensatory amount should not be dominate by any side of contract,it should have a third party professional institutions to involved.Through the use of a solid theoretical basis of academic community and the numerous judgment experience from judicial community,it is identified and put forward own points about the jurisdiction of BOT cases,contract changes and the determination of compensation standards,therefore it is provide a prospective thinking in solve the BOT contract dispute.