Reflection And Construction On The Dispute Resolution Mechanism Of Public-Private Partnership (PPP)agreement

The Public-Private Partnership(PPP)model has played an enormous role in excising the advantages of government departments and inspiring the unlimited potential of social capital.However,limited by the inherent tension between reform innovation and legislation lag,the supply of public-private cooperation legal system is seriously inadequate,and the dispute resolution mechanism of PPP agreement has not yet reached its perfection.At present,the PPP agreement dispute resolution mechanism has not yet been established formally through the legislative manner.The mistaken logic of “The Nature of the Agreement-Dispute Nature” in the legislative exploration and academic perspectives has led to the actual dislocation of the path selection mechanism of the PPP agreement dispute resolution mechanism."The Nature of the Agreement — Dispute Resolution" has passed beyond the original "Agreement —Agreement Dispute— Dispute Resolution" in the path of due regulation.In practice,under the three dominant views of PPP agreement dispute resolution mechanism derive from this regulatory logic,which includes administrative agreement,civil contract and hybrid contract theory,resulting in inadequate anatomy and failing to focus on the core issues of the mechanical construction.By using historical view and comparative analysis,it has found that "Agreement— Agreement Dispute — Dispute Resolution Mechanism" is a legal logic and consensus to establishing the mechanism of PPP agreement dispute resolution.Through the multidimensional analysis of the PPP agreement dispute resolution mechanism,one can see: First,the dispute type is the basis for the establishment of the PPP dispute resolution mechanism.Secondly,the specific disputes in the PPP agreement correspond to particular rights and obligations,which are not directly related to the nature of the agreement.And thirdly,the legal relationships arising in the PPP agreement are cross-cutting and combined.It includes both horizontal civil legal relationship,and vertical administrative legal relationship.Thus the PPP agreement disputes are consolidated among administrative and civil matters.Fourth,“The nature of things is determined by the main aspects of major conflicts,” despite the existence of civil and administrative Multiple legal relationships,but because of the fundamental and decisive role of administrative and legal relations in China,the PPP agreement dispute is still essentially a public law dispute.The Chinese plan for constructing a dispute resolution mechanism for the PPP agreement should follow a "4+3+3" construction model.First of all,adhere to the four elemental goals,that is,to balance the administrative superiority and freedom of contract,so that all disputes have corresponding solutions to achieve the categorization of PPP agreement disputes,and simultaneously develop substantive justice and procedural justice.Second,to achieve triple conceptional renewal,promoting PPP and other public-private partnership disputes to complete the transition of "Theory—Practice" to "Practice—Theory—Practice;" from the focus on commonality to the emphasis on individuality;from dichotomy to the unification of legal philosophies.And lastly,the formation of dispute "three-step" solution,this means that the current PPP agreement disputes adopt a consensus dispute resolution approach,and adheres to the principle of administrative incidental civil proceedings in priority.In order to deal with foreign-related PPP agreements and open up PPP dispute resolution paths,the arbitration model can be explored in the future to build a more scientific and rational PPP agreement mechanism of dispute resolution.