Research On The Validity Of Ppp Project Contract

At present,China's PPP boom is unprecedented.PPP is the product of "public" and "private" cooperation,the most core manifestation of the legal relationship between public and private cooperation is the PPP project contract signed by the government and the franchisee.The PPP project contract has evolved from the traditional contractual freedom and justice as the core of civil legal behavior,which has evolved into a legal regulation tool for the state to make individual and special adjustments to the transactions of both public and private parties,which embodies the legal value of substantive justice.The PPP project contract should follow the principle of value law and the principle of equal consultation and mutual benefit cooperation,fully consider the initiative and innovation of the operator.It should also carry out the public policy of the government directly and meet the macro economic goal.It is the organic unity of the two factors of property circulation and organization management.Therefore,it not only has the essential attribute of general civil contract but also has its own distinctive characteristics.From the current practice of PPP in China,because of the policy driven by the PPP model,the inconsistency of the policy provisions and the low level of the PPP law,the confusion of the practical operation of the PPP and the inconsistency of the understanding are caused.Strengthening the research of PPP project contract construction is of great significance for promoting the standardized operation of PPP project.Based on the basic theory of contract law,this paper analyzes and discusses the factors affecting the validity and validity of PPP contract.The validity of the contract is the binding force of the contract,the evaluation of the parties' agreement by the law,the existence of the domain and the scope,so that the validity of the contract is divided into effective,invalid,undetermined and uneffective forms of effect,different forms of effectiveness and different legal effects.In accordance with the basic jurisprudence of the contract when the contract is established and the contract is established according to law,the PPP project contractconcluded in the way of tendering is established and entered into effect from the PPP project contract after the notice is issued,and the signing of the PPP project contract is to negotiate the bidding documents,bidding documents and variable terms.The confirmation of the forgotten record.According to the current PPP policy,the PPP project contract should be approved by the government,the approval of the PPP project contract reflects the government's attention to the PPP project and the cautious attitude.The approval of the contract is the ex post supervision of the civil contract.From the operating characteristics of the PPP project,the PPP project should be approved by the government,and the government should strengthen the PPP reality.The examination and approval of the application scheme can not adopt the PPP model for the projects that can not be evaluated by the value of value and the ability of financial affordability,but it is not suitable to establish the examination and approval system for the PPP project contract.One of the active elements of the contract is that the parties to the contract should have the corresponding capacity for civil conduct.The "public sector" of the franchise contract should be strictly limited to the government and its industry authorities,which are clearly authorized by laws and regulations,and do not include the implementation agencies of the "administrative authorization",or the state-owned enterprises such as the industry operation companies.In order to realize the basic concept of the PPP model,the contract subject of the social capital Party of the PPP project should be strictly limited,but no matter whether the PPP project involves the construction of the project,the lack of construction qualification will not cause the contract to be invalid.As the signing body of social capital,state owned enterprises should emphasize their independence.Contracts that harm public interests,violate public order and good customs,and violate the mandatory provisions of laws and administrative regulations are invalid.The public order and good customs are the boundary of the freedom of contract,the top standard of the judgment of the validity of the contract.Whether or not it violates the mandatory provisions of the validity of laws and regulations is the specific criterion for the evaluation of the validity of the contract.The purchasestandard of the PPP model is "service".It is applicable to the government procurement law.In accordance with the law,public bidding should be adopted in the PPP project without public bidding.The project contract is invalid.The project and the project construction PPP should adopt the public bidding method to realize the project and project "and recruit",otherwise,the construction contract is invalid.At present,there are various policy documents that play a guiding role in the operation of PPP.There are many mandatory provisions.The mandatory provisions of the violation of policy documents have no effect on the effectiveness of the PPP project contract.However,in the practice of judicial refereeing in China,the violation of the national policy may have an impact on the performance of the same.The PPP project involves the social public interest,the PPP project contract which violates the social public interests is invalid.In the future PPP legislation,the public interest procedure guarantee mechanism should be established.On the one hand,the contents of the public interests should be enumerated.At the same time,the procedure for the conclusion and change of the PPP project contract should be set up and the announcement procedure should be set up.In order to help the public to know and supervise the public.