Study On The Nature Of Administrative Contract And Dispute Resolution

Since the beginning of reform and opening up,China's economy has been rapid and swift,and the demand for investment in infrastructure and public services has increased.The government's original budgetary expenditures are clearly far from meeting the people's huge investment in public infrastructure construction.The lack of funds for public infrastructure construction has become a “bottleneck” that has constrained China's economic development.To solve the problem of insufficient funding,as early as 1995,the state approved the first BOT pilot project to guide foreign investment in public infrastructure projects,and the PPP model began to be used as In the field of infrastructure and public utilities,China has been introduced.Since then,the PPP model has made considerable progress in China and has accumulated a great deal of experience and lessons from the cooperation between the government and social capital.Accompanied by this,China has also introduced a series of legal policies to guide PPP toward a more healthy development.The term "cooperation between the government and social capital" has officially appeared in China's official documents since 2014,and the PPP model is mainly regulated by administrative regulations,departmental rules,and policies.The Administrative Procedural Law was amended in 2014.The revised administrative procedural law and its judicial interpretation recognize the franchise agreement as an administrative agreement.There is a fundamental contradiction in the relationship between the privileged subject of the equality of the PPP model and the academic community.The definition creates a major dispute.The main difference lies in whether the nature of the PPP contract is a civil contract or an administrative contract,and some scholars believe that a mixed contract exists.In practice,the court has different opinions on the trial of the PPP contract.Some courts try according to the administrative litigation law,while others insist on adopting the rules of civil litigation.Due to the controversy over the nature of the contract,the corresponding remedy is also quite different.The original intention of the government and social capital cooperation is to build public infrastructure together with social capital to ease the pressure on the government's fiscal expenditure,activate social capital,and stimulate investment vitality.However,due to the qualitative nature of the PPP contract,the social capital party becomes unequal in the main position of the contract,there is a situation where social capital interests are sacrificed for the public interest,and the remedy method is also reduced.The internationally accepted arbitration method is Expulsion of administrative litigation law,many social capital investment enthusiasm began to waver,is not conducive to China's infrastructure construction and development.Due to the pros and cons to be measured in the process of the PPP legislation,the obstacle resistance is still strong.At present,the legislation on the PPP contract has started preparations since 2016,but it has not yet seen results.In 2017,the State Council issued regulations on PPP contracts and regulations.The draft of the consultation draft hopes to find a new way out for the qualitative and dispute relief of the PPP contract.The purpose of this paper is to discuss the nature of PPP contracts and dispute relief issues from the perspective of administrative law and its procedural law.Through the different characterization of PPP contracts,the PPP contract is compared with the areas of administrative law and civil law.,and analyze their corresponding relief approaches,review their respective advantages and disadvantages,and at the same time,by analyzing the contract nature of foreign countries whose PPP model development is relatively complete,and drawing on their remedy models,aiming at the further definition of the current status of PPP contracts in China and its remedies Diversification of proposals in order to make up for the shortcomings of the current PPP law perspective,to play a valuable role in the practice and development of the PPP model.