Research On Recognition And Litigation Remedy Of Governmental Franchise Agreements

In recent years,the PPP model has developed rapidly in our country.As one of the foundations of the PPP model,the government franchise agreement has also resulted in an endless stream of legal issues.To solve these problems,it is necessary to solve the problem of protecting public-private cooperation.Based on the guidance of "no relief or no rights",the choice of litigation remedy has also been placed in an important position.In fact,the logical relationship between these two issues is very clear.Only by accurately identifying whether the contract in question belongs to a government franchise agreement or determining its legal nature,can it choose the relevant litigation remedy model on the basis of this.Regarding the nature of the government franchise agreement,civil law scholars and administrative law scholars have been arguing for many years.Until the new Administrative Procedure Law incorporated the government franchise agreement into the range of administrative litigation cases,the theoretical community basically reached a consensus-government franchise.The agreement belongs to the category of administrative contracts(public law contracts).This also turns the original definition of the legal nature into a problem of how to identify the government franchise agreement.That is,only if the identification elements of the government franchise agreement are accurately clarified,can the relevant dispute contract be classified as a government franchise agreement.Judging from the experience outside the region,there are three main modes of identification: first,the French model based on “the theory of public service” supplemented by the specificity of the subject of the agreement;secondly,based on the “national treasury theory” and supplemented by legal relations.The German model for evaluation;third,consider only the Japanese model of the target standard.It is undeniable that the adoption of loose standards such as “legal relations” for government franchise agreements can greatly accelerate the pace of public infrastructure construction in the early stages of the development of public-private partnerships.However,the base of public infrastructure construction in our country is relatively large.The loose identification standards must also bring about some drawbacks.Therefore,in the process of signing the contract,the use of a more comprehensive "strict standard identification theory" should be used to identify the government franchise agreement,that is,to consider the subject,purpose,and legal relationship of the government franchise agreement.Regarding the choice of litigation and remedy model of the government franchise agreement,there is no unified opinion between the theoretical and practical circles.There are mainly three viewpoints: a single administrative litigation model,a single civil litigation model,and a mixed model of administrative litigation and civil litigation.Each of the three modes has its own advantages and disadvantages,but the mixed mode of administrative litigation and civil litigation based on the “category review method” is more reasonable,but it is not entirely without problems.Therefore,it is also necessary to carry out the development and development on the basis of the “classification review method”.What is positive is the role of executive preferential rights in the litigation remedy model of the government franchise agreement.What is discarded is the unreasonable “exclusion method”.The development is Add "Strict Recognition Criteria" to judge.This "classification review and identification method" is more reasonable,but it needs to be premised on the type of administrative contract.Judging from the revised experience of the new Administrative Procedure Law,the type is also a general trend.Although the new law mentions only two agreements between the government franchise agreement and the land and house expropriation compensation agreement,the next step will be that more types of administrative contracts will pass the law.However,it is not enough to determine the type of administrative contract.It is also necessary to clearly define the specific category and determine its identification criteria.As long as various types of administrative contract identification standards are confirmed,the determination of their nature will no longer be difficult,and the selection of litigation remedies will no longer be difficult.