Analysis Of The Legal Nature Of PPP-Agreements

It has been five years since China vigorously promoted the development of the PPP project,which is now still in the ascendant.But in the meanwhile,we can also notice that in the past five years the normative documents of governments at all levels are endless,but a relative law has yet not to be promulgated.What's worse is that some laws seem to be amended to adapt to the PPP phenomenon,only to cause more self-contradictory situations.Therefore,it's not hard for us to understand why the signing and financing rate of PPP projects are keeping low in the past five years.The task of carrying out reasonable legal regulations for PPP can be described as urgent and the main focus of the social capitals.And among all the questions to be answered,the top priority of PPP legislation is undoubtedly the judgment of the legal nature of PPP agreements.During my study in Germany,I always pay attention to the development of PPP in China.I recognized that the "two-step theory" is a good idea for us to regard the acts of public sector to accomplish its public tasks by using the form of private-law when I first learnt it at studying the government procurement part of "Unfair Competition Law"(Gesetz gegen Wettbewerbeschrankungen).I found it suitable for answering the question on the legal nature of PPP agreements in China.So I use the valuable studying opportunity in Germany to research into the "two-step theory" with the help of German tutors in depth.Based on this,the thesis adopts the comparative research framework and draws lessons from Germany's theoretical and practical experience on PPP projects.By introducing the "two-step theory" of Germany,this article intends to provide a new research approach for the question on legal nature of PPP agreements.In the introductory part,the current theories and practice in China are firstly presented,followed by the prominent problem in the development of PPP in China,namely the legal nature of PPP agreements.At present,Scholars hold different views and in practice,between laws,laws and normative documents of the government,the legislation and the judiciary,there is always contradiction.This thesis is just written to clarify the problem and try to provide a solution to this problem.In the first chapter of this thesis,I clarify several basic problems of PPP through the comparison between China and Germany,namely the definition of PPP,the basic idea of PPP and the type of PPP.Through the comparison,I lay a good foundation for the work in the fourth chapter of this article,which is also the most important chapter of this article.In a word,I clarify that there are many similarities between China and Germany on several basic PPP issues and therefore,the experience in theory and in practice is worthy of discussion and reference in China.In the second chapter of this thesis,I firstly introduce the German academia's discussion of legal regulation of PPP,and draw a conclusion that,according to the discussion of government procurement contracts in Germany,the "two-step theory"may have many advantages of solving PPP regulation problems.Next,the process of"two-step theory" from firstly proposing to continuously developing and perfecting is presented,companied by the modified subject theory and new administrative law theory,which are recognized as the basic of the new "two-step theory".Finally,I also describe the application of the "two-step theory" in practice in Germany,especially in the government procurement contract,paving the way for the following.In the third chapter of this thesis,I begin with the assessment of the three kinds of views on the legal nature of PPP agreements on the basis of the "administrative correctness" under the new administrative law theory,discuss the possibility of introduction of the "two-step theory" and relative administrative theories in China to help answer the question of the legal nature of PPP agreements.According to the traditional classification of PPP,the paper makes a two-step division of both the government-paid commissioned PPP and the user-paid concessionary PPP.And from the theoretical and practical perspectives,the feasibility and rationality of such a division are analyzed,and the conclusion is drawn that according to the "two-step theory",PPP agreements can be divided into two phases:decision phase and contract phase,respectively pointing to the administrative nature and the civil nature.This point of view not only solves the existing problems in the traditional viewpoints,truly provides clear legal remedies on PPPs,but also meets China's current legislative and judicial practices and the interests of all parties involved in PPPs.It can be the best answer to the question of the legal nature of PPP agreements.In the fourth chapter of this thesis,on the one hand,I review and summarize the whole article,on the other hand,I also illustrate some problems that may exist in the thesis,with the aim of preparing for further research.In a word,the method of comparative jurisprudence is used in this thesis to discuss the inspiration the "two-step theory" in Germany can provide to answer the question of the legal nature of PPP agreements in China.I try to use it as an approach to answer the question of the legal nature of PPP agreements,in order to set the ball rolling and arouse scholars to think more and discuss further on this issue.