Study On Soft Law Governance Of Public-private Partnership

In China,one of the important manifestations of social transformation is to realize the socialist market economic system.The development of market economy requires the government to dilute its power and withdraw from some public areas.In many public areas,marketization can be introduced to solve the problem of the production and supply of public goods.The Third Plenary Session of the 18 th Central Committee of the Communist Party of China decided to allow private department to participate in the urban infrastructure investment and operations through franchise and other ways.Subsequently,the State Council,the Ministry of Finance,the National Development and Reform Commission and other departments issued a series of encouraging policies of government and private department cooperation,and local governments also formulated corresponding normative legal documents.The development of PPP in China has been gradually incorporated into the process of legalization.The cooperation spirit of "co-construction,co-governance and sharing" brought by PPP may provide an opportunity to crack the reform problems,break the market barriers,promote the transformation of government and build a country ruled by law.At the same time,the cooperation between the government and social capital in the field of public services has impacted the traditional concepts and systems,which will directly lead to great changes in legal thinking and institutional arrangements.From the practice of PPP development,the legal system of PPP in China is seriously imperfect,which affects taking advantages of PPP to a large extent.However,the absence and limitations of hard law provide space for the generation and development of soft law on PPP.It can be said that soft law directly promotes the landing and development of PPP.Soft law governance of PPP has been the status quo in the field of PPP,but due to the influence of China's legal and institutional environment and many practical problems,there are many deficiencies in soft law governance of PPP.This paper aims to analyze the current situation of soft law governance of PPP and explore the way to improve soft law governance of PPP.This paper is divided into four parts to focus on soft law governance of PPP:The first part,starting from the basic concepts of PPP and soft law governance,expounds the advantages and significance of soft law governance of PPP.Firstly,this part explains the concept and characteristics of PPP,and then analyzes the positive and negative externalities of PPP from the perspective of unbalanced interests of PPP participants.Secondly,the definition of soft law leads out that soft law governance of PPP refers to the governance of PPP based on soft law,which involves the creation and implementation of soft law norms in PPP field.Thirdly,combined with characteristics and practical needs of PPP,it is pointed out that the advantage of PPP soft governance lies in its responsiveness,flexibility and consultation,etc.The significance of soft governance to PPP practice lies in: making up for the defects of hard governance,cultivating efficient industry self-discipline mechanism,improving the degree of public participation,and building interest coordination mechanism.The second part explores the theoretical and practical basis of soft law governance of PPP in China and analyzes the possibility and necessity of it.This part constructs the theoretical basis of soft law governance of PPP based on the theory of public governance,the theory of the relationship between the government and the market,the auxiliary criterion and the principle of proportion.Secondly,through the investigation of the current operation status and current legal framework of PPP in China,the defects of single hard law governance in PPP field are analyzed,and the disadvantages that have a negative impact on the development of PPP are pointed out.Thirdly,starting from the inherent cooperative attributes,institutional requirements and positive externalities of PPP,this paper explains the inherent compatibility between soft law governance and PPP.The third part examines the current situation of soft law governance of PPP in China with the method of empirical analysis,and explores the defects and deficiencies in the establishment and implementation of PPP soft law norms in China from the problem perspective.This part summarizes and analyzes the soft law norms in the field of PPP in China,and puts forward that the flexible law,PPP policy,self-discipline norms and professional standards constitute the standard system of soft law governance of PPP,and has been implemented through the unique operation mechanism,which has a strong practical effect in practice.At the same time,this part examines the problems existing in soft law governance of PPP from multiple perspectives,including the irrationality of soft law norms,insufficiency of soft law norms,defects in the implementation mechanism and insufficient dispute resolution mechanisms.The fourth part synthesizes the argumentation and thinking of the whole paper and puts forward the rule of law direction of soft law governance of PPP.At the macro level,soft law governance of PPP must establish the value goal of safeguarding public interests.At the micro level,it is necessary to improve the system supply of soft method,improve the operation mechanism of soft method,and construct a mixed and complementary governance mode of soft method and hard method in PPP field.