The Study Of Administrative Priority Under BOT Concession Agreement

BOT is,a mode of investment, construction and operation in public utility and public infrastructure, widely used in the field of sewage treatment, road construction,energy supply, etc. Compared with governmental monopoly in investment and construction, such mode, as the investment fund raised by private person(s), shows up a huge advantage.However, in BOT project, there are also some issues upon the usage of such mode which even leads the projects to be terminated. Thus, lots of researchers make their study on governmental guarantee, investment reward and etc.As the core of BOT project, it's important that the BOT concession agreement(“Agreement”) be performed fully by both parties thereto. However, we must point out, sometimes, government infringe the parties' and/or even the third party's legal rights and interests by the government's abuse of administrative priority(“AP”),which severely affected that BOT project in construction and operation.That's why, this paper, via the deeper study on the AP related to Agreement,confirms concession agreement has the nature of domestic law contract and administrative contract and shall be considered as one of the existing administrative priority according to existing specification. Then, this paper makes description on the behaviors, reasons and the necessity of restrictions of improper usage of AP related to Agreement on the practice basis. And, at last, this paper gives advices from the aspects of substantive law, proceeding law and legal remedies.This paper is sorted into four parts. Part 1 is about the background of the study,the existing outcomes of study, study approach and content.Part 2 is about followings:(i) the description of concept of BOT and Agreement;(ii) the introduction of opinions of the nature of Agreement in domestic and overseas;(iii) the writer's opinion on the nature Agreement;(iv) the categories of the AP related to Agreement;(v) the discussion upon thenecessity of giving such priority to administration/government.Part 3 is about the introduction of a series of the behavior of improper usage of AP,finding and analyzing the reasons from legislation, government, public interests and Agreement, which means that AP restriction is pretty necessary, the fourth part herein shows up the base for measures available to the existing situation which will be set forth in Part 4.Part 4 is about the necessary of restricting AP and then give the way to restrict it.The path is followings:(i) in respect to substantive law, on the basis of the reason upon the abuse usage of AP in practice, this paper sets out the advices on legislation, the condition of AP and the definition of public interests; and(ii) in respect to proceeding law, this paper gives advices on providing the proceeding right to counterparty via bringing in the system of notice, negotiation, hearing; and(iii) in respect to the legal remedies and Administrative Procedural Law(revised in 2015), this paper considers the government as the administrate counterparty in legal remedies, and brings conciliation proceedings and rules of civil law in administrative proceeding.