The Research On The Legal Mechanism Of Social Capital Withdrawal In PPP Project

In the past two years,PPP has been referred to as one of the most famous engineering law’s words,including law,architecture,management,economics,and so on.It is an innovation in infrastructure construction.Six ministries,such as the National Development and Reform Commission,define PPP as follows:the " The government adopts the competition mode to authorize the legal persons or other organizations within and outside the country to make clear the rights and obligations and the risk sharing through the agreement,and stipulate that they will invest in the infrastructure and public utilities within a certain period and scope and obtain income,and provide public goods or public services." From this view,PPP mode is a kind of "hand-in-hand" public-private partnership between the government and the social capital.The government grants the franchise right from the administration,so that the social capital side can carry out the project construction and recover the investment cost through the later infrastructure operation.On the one hand,the PPP model can effectively relieve the financial pressure of the government,on the other hand,it can improve the quality of infrastructure and public service construction,weaken the power of government affairs,accelerate the transformation of government functions,and benefit the people.In PPP mode,most of the social capital are construction companies with construction qualification and no operational capability.How to realize the reasonable and satisfied withdrawal for both parties after the project construction has become a problem to be solved urgently.Compared with the access mechanism of PPP project,the current academic and practical circles pay little attention to the withdrawal mechanism.All kinds of laws,regulations,rules and policy documents issued by the state-related departments only have the framework norms without specific operation regulations,and the local governments also take the " Heavy introduction,light exit" as the policy guidance.In particular,issued in the first half of 2018,the "No.92" is a node of large-scale clean-up project bank,how to realize the " gorgeous turn”is a problem that needs to be solved for the social capital without operational capability.A system-perfect exit mechanism means that social capital can exit the PPP project reasonably and effectively,and protect its legitimate rights and interests after the completion of the construction.In addition,the perfection of exit mechanism can also promote the capital mobility of PPP projects,enhance the attraction of PPP projects to social capital,increase their enthusiasm for participating in PPP projects,accelerate the construction of infrastructure facilities,and benefit the masses of the people.This paper is divided into four chapters:The chapter one is the introduction,mainly explains the research background of PPP project social capital withdrawal,the domestic and foreign research present situation,and the realistic meaning of the“No.92”,the continuation of the exit mechanism,and the thesis research thought and the research method.The chapter two mainly describes the theoretical path of social capital withdrawal mechanism under PPP mode.It is divided into three parts:the concept and necessity of withdrawal,the relevant legal policy of the exiting mechanism of our country.According to different criteria,the withdrawal of social capital is divided into two categories,the withdrawal method is summarized as the expiration transfer mechanism,the pre-period transfer and the government temporary takeover mechanism,the asset transfer mechanism,the equity transfer and the stock repurchase exit mechanism,the asset-backed securities mechanism,the public listing exit mechanism.This part discusses the necessity and necessity of perfecting the exit mechanism.Chapter three separately analyzed the internal legal problems existed in these six mechanisms.At present,the legal level of PPP mode in China is relatively low,and there is a lack of implementation rules,the agreement of project agreement is unclear;the government unilateral examination and approval in the pre-period transfer,infringement of the lawful rights and interests of the social capital party;the real delivery procedure in the transfer of assets is complicated and the asset ownership dispute is easy to occur;the use of unequal status by the government seriously limits the transfer of equity by social capital,coupled with the longer locking period of equity transfer,which affects capital flows;in that exit mode of asset-backed securities,the right of charge income is easily affected by the change of future policy,and it is difficult to guarantee the stable cash flow,and the property of base asset and charge income right is ambiguous,which hinders the smooth progress of real sale;when the exit of social capital is realized by public listing of project company,it is faced with the problem of lower listing efficiency and longer equity lock period.In Chapters four of the article,this part puts forward specific strategies and legal perfect paths for the existing problems of the equity transfer,the asset-backed securities,the public listing.It is hoped that this paper can promote the healthy development of PPP mode in China and provide some inspiration and reference for PPP practice.