Research On The Nature Of Public Utility Franchise Contract And Its Termination

Public utilities franchising is a typical manifestation of the cooperation between government and social capital.This model not only solves the shortcomings of insufficient supply of government resources and inefficiency,but also introduces social capital,activates the market and improves the supply level of government public utilities.Since the implementation of public utilities franchising mode in the 1990 s,China has made remarkable achievements.However,due to the late implementation of the Public Utilities Franchise mode,inadequate legislation and in-depth research,there are still many problems in practice,among which the unclear nature of the contract and the imperfect rules of unilateral exercising the right of rescission by the government are typical representatives.The nature of the public franchise contract is related to the formation,performance and termination of the contract.The exercise of the government's unilateral termination right is an important way to realize the termination of the contract.However,there are some problems such as imperfect legislation,inconsistent judicial practice and arbitrary termination of contracts by the government.The premise of the research on the rule of unilateral termination of power of government in public utility franchise contract is to confirm the nature of contract.However,there is lack of centralized legislation in China.There are legislative gaps and conflicts in the normative documents of various ministries and commissions.As a result,in judicial practice,the courts in different regions have contradictory or even conflicting judgments on the nature of contract,so as to study the unilateral termination power of government.Exercising rules creates confusion.Therefore,this paper focuses on the nature of the contract,through the analysis of different scholars' views,the main contradictions of the contract,the different impact of the contract after the qualitative analysis,and so on,confirms that the contract is a civil contract,which should be adjusted by civil norms.On this basis,the author studies the rules of exercising the right of unilateral rescission of the contract by the government.The content of this paper is divided into three parts.The first part summarizes and refines the meaning and characteristics of the public utility franchise contract,analyses the theory about the legal nature of the contract,puts forward the viewpoint of the civil contract in this paper,and proposes to stipulate the nature of the contract in legislation.The second part focuses on the analysis that the government enjoys the right of unilateral rescission of contracts.It qualitatively analyses the conditions and procedures for exercising the right,and suggests that the conditions for exercising the right of unilateral rescission of contracts should be stipulated in legislation as notification,litigation or arbitration for the public interest.The third part analyses the relief ways and relief ways after the termination of the contract,puts forward that the parties should be given the right to choose the relief ways,and the parties should decide to choose the civil relief or administrative relief ways.It also analyses the scope of the government's compensation to the counterpart after the termination of the contract.