On Perfecting The Judicial Review Of PPP Project Contract

PPP is a “partnership” between the government and private capital for common purposes,and sharing risks and sharing benefits.It is an important means to mobilize social forces and the government to cooperate and co-govern.A large number of PPP projects have been put on the ground,and the controversy has increased.The standardized and orderly development is the new theme.China's PPP regulations are contradictory and have low ranks.In addition,the deep integration of public law and private law under the PPP model poses a huge challenge to the traditional public-private separation litigation system.The existing judicial review model is not clear and the system is not perfect.How to improve the judicial review of PPP project contract is worthy of further study.The PPP project contract is concluded by the government and private capital for the performance of the PPP project and is the foundation of the contract group.Determining the nature of the contract is a prerequisite for determining the judicial review model of the contract.However,the complexity of the subject's legal status of the PPP project contract,the duality of the contractual purpose,and the composite nature of the contract content have led judges and scholars to encounter difficulties in using the traditional civil contract and administrative contractual division theory to define their nature.Therefore,when we use the traditional theory,it is necessary to learn from the “proximate cause theory”and “direct execution of the official business theory”,intercept the causal chain with the contract to judge the purpose and content of the contract,and use the philosophical principles of major contradictions and major aspects of contradictions to judge the essential attributes of a contract.The agreement in the contract is consultation agreement.The parties to the agreement are not in a completely equal position.The main purpose of the agreement is to realize the public interest.The administrative legal relationship and the administrative legal content are the main contents of the contract.Therefore,the PPP project contract is an administrative agreement involving civil factors.There are three main difficulties in the judicial review process.First of all,the existing judicial review mode can not completely solve the contract dispute:The single civil litigation mode cannot review administrative disputes,and it is difficult to balance public and private interests.Under the single administrative litigation mode,theadministrative agencies lack the plaintiff qualification,and the space for mediation is limited.The public-private separation judicial review mode is difficult to clearly distinguish the intertwined civil disputes and administrative disputes,but instead increase the litigation and reduce the efficiency of trials.Second,the public plaintiff's qualifications are missing.The PPP project contract is an important means for the government to undertake the obligation of survival and care.The third-party consumer(the public)is the ultimate beneficiary of the contract,and it is also an important source of contract funds,and its rights and interests are deeply affected by the contract.However,according to the existing law and the traditional right of action theory,it can only file a civil lawsuit based on its service contract with the social capital party.The public has no right to file an administrative lawsuit against a PPP project contract,nor is there an administrative public interest litigation plaintiff qualification.Finally,the temporary rights protection system is not sound.In the judicial proceedings,there is a lack of a clear legal suspension mechanism.Judges often not easy to make a ruling to stop execution,basing on the idea that administrative litigation does not stop execution and public interest is prioritized.Third parties cannot receive relief in time.The main problem in the judicial review entity is that there are differences in the judicial recognition standards for invalid contracts.On the one hand,the court has different attitudes towards the application of the contract law.On the other hand,there are differences on whether the agreement is “illegal or invalid”.The main reason for this dilemma is that the legal relationship of PPP project contract is extended from the legal relationship between the traditional administrative agency and the relative person to the three-law relationship between the administrative agency,the private subject and the public,presenting a complex form,judicial practice ignores the public law relationship established between the public and the government based on the guarantee theory;The civil disputes and administrative disputes in the PPP project contract are intertwined and difficult to distinguish.It also has a certain impact on the traditional public-private separation litigation system.The special design of the judicial review mode,third party rights protection and contract effectiveness review of the French and German PPP project contracts reveals that the relief of the PPP project contract can be developed from the traditional public-private relief separation model to the public-private relief cooperation mode.It is necessary to be comprehensive and timely,pay attention to balancing public and private interests,and take into account the stability and legitimacy of contracts.In order to improve the judicial review of PPP project contracts,The current administrative litigation system is built for the examination of high-powered administrative actions,the generalization of Revocation litigation,The absence of Payment litigation and Affirmation litigation have made it difficult for us to cope with complicated litigation requests;The rules designed for the revocation of litigation are single and crude,and they are unable to provide “personalized” relief for various types of disputes.It is necessary to classify the dispute according to the original request,and the same administrative tribunal will conduct a classified review according to the supporting regulations for specific disputes.In line with this,it is also necessary to establish a two-way litigation structure and expand the scope of litigation mediation.Second,the government and the public are linked based on the theory of guarantees.The right to subsistence is a constitutional right.We should give more relatively certain public qualifications to the plaintiff.At the same time,citizens should be given the qualifications of the plaintiff in administrative public interest litigation,and this should be restricted to reduce the risk of abuse and “free rider”.At the same time,citizens should be given the qualifications of the plaintiff in administrative public interest litigation,and this should be restricted to reduce the risk of abuse and “free rider”.Finally,it is also necessary to expand the temporary rights protection system and increase the litigation at the bidding stage as an exception to the non-stop implementation.By highlighting the responsibility of notification and limiting the time limit for suspension,reduce the impact of the suspension system on the determination of administrative actions.In the entity,it is necessary to unify the judicial cognizance standard of invalid contracts.The contractual nature of the contract and the imperfect regulations of the administrative agreement make the application of civil law reasonable and necessary.However,administrative nature is the essential attribute of the contract,which determines that the applicable laws and regulations are mainly public law.The “Contract Law”should be restricted and applicable;the judgment of contract effectiveness should be considered in combination with legal judgment and public interest and reliance interest.PPP project contracts are related to public welfare,requiring us to recognize their effectiveness as much as possible,We should confirm the different forms of effectiveness of the contract based on the severity of the flaws in the illegal contract.