Research On The Legal Nature Of Public-Private Partnership(PPP) Contracts

In November 2019,the judicial interpretation of the administrative agreement was promulgated,and the "cooperation agreement between the government and social capital in accordance with Article 1 of this Regulation" was characterized as an administrative agreement and included in the scope of administrative litigation.Discussions on the legal nature of PPP contracts have been heated.The PPP model has been vigorously promoted by the Chinese government at this stage,which is of great significance for transforming government functions,stimulating market vitality,accelerating the construction of new urbanization,and building a modern financial system.At present,the unveiling of the unified "PPP Law" indicates that the development of PPP in China has entered a mature stage.Therefore,we must continue to deepen the practical experience summary and related theoretical research of PPP to ensure its long-term healthy development.The PPP contract is the core and foundation of the entire PPP mode operation,and plays a decisive role in the development,operation and dispute settlement of the project.Therefore,it is essential to accurately characterize PPP contracts,which determines the value orientation of PPP mode,the application of specific laws and the choice of dispute resolution approaches.The solution of this problem has both theoretical value and practical significance.However,the PPP contract has a long cycle,is intricate and complicated,and has both public and private law characteristics.Civil relations and administrative actions are intertwined,so it is difficult to characterize them.Previously,the lack of judgments on the legal nature of PPP contracts and the confusion of dispute settlement methods have caused difficulties for the parties’ right relief and limited the healthy and stable development of PPP.This article focuses on the legal nature of PPP contracts,further summarizes previous opinions and disputes,falsifies and corrects them,and discusses them from the following four aspects.It is hoped that it will deepen the understanding of the legal nature of PPP contracts and promote further special legislation to regulate them.The first part of this article briefly outlines the basic theory of PPP contracts.Public-Private Partnership,or PPP,is a new type of investment and financing model in the field of infrastructure and public services.Its connotation is: first,the main body is government and social capital;second,the purpose is to optimize public goods and services;three The methods include franchising,etc.Fourth,the principle of cooperation is to share benefits and risks,and to cooperate for a long time.PPP projects are divided into various types due to their different operation modes,which makes PPP contracts differ in structure and content.Most of China adopts franchising to carry out project construction,most of which are BOT models or their variants.The PPP contract is the core charter of the entire PPP model,which specifies the rights and obligations between the core subjects(the government and the social capital),and also includes the structure and composition of the entire contract system.The second part sorts out the controversy over the legal nature of the current PPP contract.In the theoretical world,there are currently three mainstream views,namely,civil contract theory,administrative contract theory,and mixed contract theory.The civil contract says that from the perspective of the contract formation process,the two parties have concluded on the basis of equal negotiation;the contract matters have a strong civil nature,such as capital contribution,equity transfer,and income acquisition;public-private cooperation should be the main purpose of PPP,so We must pay attention to protecting the interests of social capital parties and mobilize their enthusiasm,so it is more appropriate to support dispute settlement mechanisms such as mediation,civil litigation,and arbitration.The administrative contract stated that one party of the PPP contract is an administrative agency and enjoys administrative privileges.There are a large number of administrative actions.The purpose of the contract is to allocate public resources.The use of relief measures such as administrative reconsideration or administrative litigation highlights public welfare,so it should be included in the administrative The scope of the contract.The mixed contract said that the PPP contract has both the nature of public and private law,and should be a mixed contract of civil and administrative contracts.It cannot be simply characterized as a single contract.In dispute resolution,a "dichotomy" or even a special economic court is established to handle it..In practice,there are two main ideas for handling disputes over PPP contracts.The first is regardless of the nature of the contract,and only judges whether the content of the dispute involves the exercise of administrative power by the administrative subject.If so,it is handled as an administrative dispute,otherwise it is handled as a civil dispute.The second is to determine the nature of the PPP contract directly in the case,based on the subject,procedure,content,etc.of the contract,and then choose a civil or administrative dispute resolution path.There are common problems in the two approaches.Due to different judgment standards,judicial justice may be affected.In the third part,after analysis,the thesis points out that it is more appropriate to identify the legal nature of China’s PPP contract as an administrative contract,which is more in line with China’s system and current PPP practice.First,the limitations of the civil contract theory and the mixed contract theory are analyzed.These two viewpoints do not pay more attention to the administrative supervision necessary for PPP contracts and their specialities in the purpose of establishment,dispute resolution,and contract termination.The PPP contract is identified as a civil contract that is difficult to meet the fundamental purpose of developing a PPP mechanism,and a mixed contract is deemed to be incompatible with the status of China’s legal system and difficult to practice.Then it analyzes the rationality and necessity of the PPP contract as an administrative contract.The PPP contract has stronger administrative attributes.It is defined as an administrative contract that can better protect public interests,regulate contracting procedures,and prevent the abuse of public power.Continuous development has also provided sufficient feasibility for regulating PPP contracts.The last part of the article puts forward several suggestions from the perspective of PPP contracts governed by administrative regulations,hoping to promote good governance of PPP contracts.The first is to improve the administrative procedures and regulations of PPP contracts,to tighten the cage of the system,and to regulate the behavior of administrative organs in the exercise of administrative privileges in signing,performing,changing,and terminating PPP contracts.The second is the improvement of the inherent guarantee clauses of the contract,including the retention of ownership by the government,the supervision and intervention of the government,the unilateral change or suspension of the contract by the government,and the withdrawal mechanism of the social capital.The third is the thinking of dispute resolution mechanism.Based on administrative litigation,we can learn from French experience and introduce arbitration mechanism,which is conducive to professional and efficient settlement of PPP contract disputes.