The Study On The Legal Nature Of Chinese PPP Contract

In recent years,the Public-Private-Partnership(here in after referred to as "PPP"),as a new form of private capital participating in public project construction,has a good development prospect in China.However,at present,the legal nature of the PPP contract is not clearly defined in China's academia and judicial practice,resulting in the low landing rate of PPP projects and the unsound PPP relief mechanism,etc.,which greatly hinders the development of PPP projects.Academic circles at present around the PPP protocol attribute and private law,formed a civil contract theory,theory of administrative contract,commercial contract theory,theory of confusion and other point of view,this article through to comb and analyze these points of view,and from the main body of the PPP protocol,the purpose,content,the respect such as relief way analysis,draw the conclusion: the PPP contract is the administrative contract.In order to provide relevant basis for the legislation of cooperation agreement between government and social capital in China,promote equal dialogue between social capital and government in PPP projects,expand and improve the PPP judicial relief mechanism,and promote the orderly progress of PPP projects in practice.In addition to the introduction and conclusion,the text is divided into four parts:The first part is an introduction to the PPP contract,including the connotation,characteristics and common types of PPP mode,the connotation and extension of PPP agreement and other issues,and the related connotation is basically clarified.The second part is the legislative dispute the PPP contract.It mainly sorts out several representative viewpoints about the legal nature of PPP agreement in the academic circle,including civil contract theory,administrative contract theory and mixed theory.It elaborates the dispute focus and makes a brief comment on the three viewpoints.The third part is the practice dispute the PPP contract,combing the current legislative and judicial practice of legal nature of the PPP agreement and the provisions of the controversial approach tries to analysis the ministry of finance,the national development and reform commission,the state council,the Supreme Court's position on this problem,provide the legislative basis for the PPP protocol to define the legal nature.The fourth part is the definition of dispute the PPP contract,focusing on the analysis of the purpose,subject,rights and obligations of the PPP agreement,as well as the administrative benefits of the PPP agreement,and elaborating the author's view that the cooperation agreement between the government and social capital in China is essentially an administrative contract rather than a civil contract.