Study On The Legal Application Regarding The Public-Private-Partnership (PPP) Contract

In the worldwide,the academic discussion and the first line practice of the public and-private-partnership(PPP)have become a trend.Whether Germany and Japan,which belongs to the continental law system or the United States and Britain,which belongs to the common law system,they are complying with the historical trend of "public administration reform" and "the rise of the cooperative countries",and vigorously develop and perfect PPP theory and system.In recent years,the mode of PPP has also set off a wave of theoretical research and practical exploration in our country.The government and relevant departments have promulgated relevant policies and documents to promote and encourage the development of the cooperation model of public and private.However,there are still some important and critical issues that we have not yet sufficiently clarified.We cannot avoid it.For instance,the concept,extension and type of the PPP model are not clear in the top-level designetc..The author wrote this paper,intent through combing the domestic and foreign theories and the domestic legislation and practical experience,to achieve clear connotation and extension of PPPand so on,and to provide a research perspective to study the relevant the legal application regarding PPP contractin domestic.Specifically,In terms of connotation,PPP mainly refers to the government and the organizations that have public affairs management functions authorized by law or by the government choose the social capital side by competitive way,the two sides cooperatein the field of infrastructure and public services.They clarify their rights and obligations through contract form or organization form,and share profits and risks.Among them,the social capital side is mainly responsible for the investment,construction and operation of infrastructure and public service projects.The government is responsible for supervising and urging the social capital parties to fulfill their obligations and maintain and protect the legitimate rights and interests of the social capital partners.In terms of extension,the PPP model has the main characteristics of the relative equality of the government and the social capital in the law.In terms of typology,PPP mainly includes two mainstream forms of franchising and government procurement.In the PPP model,cooperation in the form of contract is a more stable and widely accepted form of operation.Generally speaking,in order to better promote the smooth expansion of the PPP project and to condense the common consensus on the legal application of PPP contracts ofdifferent types,PPP contract usually shall include the principled terms(background terms andPrinciple terms),rights and obligations terms(subject qualification,main rights and obligations),funding operation terms,confidentiality terms,BOT terms(for franchising),contract changes and termination terms etc..In addition,with regard to the nature of the PPP contract,the mainstream view in recent years is PPP contract is regarded as the hybrid nature of the contract,at the same time,this view is also more in line with the specific operation in practice and theory.On this basis,it can consider setting up two parallel relief pipelines in administrative action(and administrative reconsideration)and civil action,and then,according to the specific stipulations in the public PPP contract,it will decide which pipeline to choose.As for the responsibilities of both sides in PPP contract,the government is mainly responsible for supervision,management,testing and leading,and promoting the dual responsibility of the project development.The social capital side is mainly responsible for the specific investment,construction and operation of recommending projects.With the issuance of government and social capital cooperation regulations(Draft)and the high-level legislative work at the national level,a PPP code is necessary and will be implemented in the future.