Study On The Legal Nature Of Public-Private Cooperative Contract For Environmental Protection

The public-private cooperation contract of environmental protection refers to the contract between Princess and private subjects to clarify their rights and obligations in environmental protection cooperation for the purpose of environmental pollution control,ecological environment restoration and environmental protection public goods and public services supply.The "princess body" of the public-private cooperation contract of environmental protection refers to the government,and the "private subject" refers to the social capital party.According to the Guidelines on Cooperation between Government and Social Capital(2014),there are two types of public-private partnership contracts for environmental protection,that is,environmental protection franchise agreement and government contract for purchasing environmental protection services.The basic legal principles to be followed,the specific legal rules to be applied and the way to settle disputes all depend on the determination of the legal nature of the contract.Therefore,the promotion and development of public-private cooperation in environmental protection will be greatly hindered when the legal nature of the public-private cooperation contract in environmental protection is still uncertain.Many scholars argue about the legal nature of public-private partnership contract in environmental protection.At present,three theories have been formed,that is,civil contract theory,administrative contract theory and mixed nature contract theory.The main reason for the controversy lies in the inconsistency in the laws and regulations on the legal nature of public-private cooperative contracts and the qualitative nature of contracts in the normative documents.In addition,there is no uniform standard for the legal nature of public-private partnership contracts in judicial practice.There are obvious deficiencies in the three theories about the legal nature of public-private cooperation contract in environmental protection,the administrative contract theory and the mixed nature contract theory.Regarding the administrative contract,although the main body of the public-private cooperation contract for environmental protection is the government,the contract mainly reflects the agreement reached by the government and the social capital based on the self-government consultation;and regarding the administrative contract,there is no perfect legal norm system in our country,coupled with fewer ways of dispute relief,the constant number of defendants in administrative litigation and so on,which is very unfavorable to full protection.Guarantee the legitimate rights and interests of the subject of the contract.Concerning the mixed nature contract theory,the mixed nature contract does not belong to the type of contract stipulated by our country's law and lacks legal basis.The subject of contract can not decide whether to choose civil or administrative ways when solving disputes,which is not conducive to the timely and smooth settlement of contract disputes.Therefore,there is only theoretical probability,and it has no significance in practice.Therefore,the public-private cooperation contract of environmental protection should not be defined as either administrative contract or mixed contract.This paper agrees with the civil contract theory that "double-order theory" and "Coase theorem" can provide theoretical support for the characterization of public-private cooperation contract for environmental protection as civil contract.According to the "two-order theory" and taking the conclusion of the contract as the demarcation line,the public-private cooperation in environmental protection can be roughly divided into two stages: pre-contracting stage and post-contracting stage.The pre-contracting stage mainly involves some administrative examination and approval acts,which are obviously administrative and therefore should be adjusted by public law.The post-contracting stage mainly reflects that the government and social capital parties enjoy rights and obligations equally in accordance with the contents of the contract,and have a very obvious civil nature,so they should be adjusted by private law.Therefore,the public-private cooperation contract for environmental protection should be adjusted.It is very reasonable that the agreement is a civil contract.According to the connotation of Coase Theorem,under the premise of clear property rights and zero transaction cost,social resources can be allocated efficiently.Characterizing the public-private cooperation contract of environmental protection as a civil contract can prevent the government from interfering in property rights to a certain extent,thus helping to clarify property rights,and the perfect legal norm system of civil contract can also help to reduce transaction costs,thus realizing the optimal allocation of public welfare resources of environmental protection.Therefore,the public-private cooperation contract of environmental protection should be defined as a civil contract.As far as practice is concerned,defining the public-private cooperation contract of environmental protection as a civil contract also has many positive effects,including clarifying the legal application of the public-private cooperation contract of environmental protection,clarifying the way to solve the disputes of the public-private cooperation contract of environmental protection,and protecting the legitimate rights and interests of both parties of the public-private cooperation contract of environmental protection equally.These benefits can solve the worries of private enterprises participating in public-private collaboration of environmental protection to a certain extent,enhance their confidence,encourage their extensive participation,promote the diversification of social capital in public-private collaboration of environmental protection,and promote the healthy and stable development of public-private collaboration in the field of environmental protection.