Research On Risk Of Government-Enterprise Cooperation Contract In Ppp Operation

Public and Private Partnership(hereinafter referred to as"PPP")is a long-term cooperative partnership that established between the government and social capital,with benefit sharing,risk sharing and complementary advantages.With the promulgation of Regulations of the Supreme People's Court on Several Issues in the Trial of Administrative Agreement Cases(hereinafter referred to as "Interpretation of Administrative Agreements"),it clearly states that PPP government-enterprise cooperation contract is administrative agreement.Which has aroused heated discussions,and many scholars believe that the implementation of this interpretation will have a significant impact on the PPP market.In this context,how to prevent and control the risk of government-enterprise cooperation contract and promote the win-win situation between government and enterprises and the public has become a question that we need to research.This article uses methods of literature research,case study and so on.Starting from the PPP government-enterprise cooperation contract,it studies the important provisions of the PPP government-enterprise cooperation contract that related to risk issues.It also discusses major contract that may have a significant impact on the risk of government-enterprise cooperation contract.This article responds to the view that some scholars believe that the government's administrative privilege can damage the equality of PPP government-enterprise cooperation contract,theoretically,it discusses the necessity of its existence.Regarding the situation that the jurists believe that the standards for administrative agreement are not uniform,this article gives the criteria for identifying administrative agreements.At the same time,it combines with the interpretation of the administrative agreement from the perspective of contract risk management,which analyzes the possible risks of PPP government-enterprise cooperation contract and puts forward targeted prevention and control suggestions.Finally,it explores the methods of institutional optimization from the Legal System.The article is mainly divided into five parts.The first part is a general introduction of the PPP government-enterprise cooperation contract,which lays the foundation for subsequent research.First of all,it expounds the legal relationship between PPP government-enterprise cooperation contract.Secondly,the PPP government-enterprise cooperation contract system is divided into the core contract,the major contract,and the minor contract.In addition,it briefly explains the basis of division and the principle of the main contract's transmission of risks to core contracts(that is,government-enterprise cooperation contract).Finally,it discusses the main reasons for the risk of PPP contract,including legislation,judicature,administration,breach of contract by party and other factors.The second part is how to prevent and control the establishment and validity risk of government-enterprise cooperation contract.This article analyzes the common situations of contract failure,validity to be determined,and risk of invalidity according to the administrative agreement.Moreover,it is suggested that the risk should be prevented and controlled from strictly observing the signing procedures,paying attention to the contract and the management of PPP projects.The third part is the analysis how to prevent and control the performance risk in PPP operation.First of all,the performance risk is divided into the default due to the external risk of the contract and the default due to the risks of the contract itself.Secondly,this article puts forward prevention and control suggestions in terms of perfecting contract terms,strengthening supervision and management,and strengthening system construction.The fourth part is the analysis how to prevent and control the risk of the change and termination of the government-enterprise cooperation contract.In the first place,it demonstrates the necessity of the government's uni lateral right to change and dismiss.Secondly,it states that there are risks of inconsistency in understanding Non-material alteration,Procedural legitimacy risk and discretionary risk of the administrative prior rights of modification and termination of the government-enterprise cooperation contract.Finally,it puts forward suggestions for prevention and control from the aspects of entity,procedure and compensation.The fifth part is the analysis how to prevent and control the risks in the dispute resolution of government-enterprise cooperation contract.Firstly,it expounds the judgment criteria of administrative agreement.In addition,it identifies the character of PPP government-enterprise cooperation contract.Secondly,it elaborates on the problems of the current dispute resolution system from the two dimensions of litigation and non-litigation.At the same time,it uses the experience of extraterritorial dispute resolution,supervision and other aspects for reference.Furthermore,it puts forward prevention and control recommendations.