Research On The Government's Legal Liability Under The PPP Project

PPP project is being promoted vigorously in our country at present,but at the same time,due to the lack of relevant legislation,the legal relationship between participants is still unclear,and the nature of the project contract is not uniform,resulting in many problems in the practice process.As of the end of March 2008,according to the requirements of the Ministry of Finance No.92,the comprehensive information level of PPP center of the Ministry of Finance has accumulated a total of 1160 management projects,and the total amount of investment has been reduced by 1 trillion and 200 billion yuan.Among many problems,the government's responsibility is particularly prominent.This paper attempts to clarify the legal relationship between the government and the different subjects in the PPP project,clarify the government's obligations,and discuss the government's legal responsibility and the way of assuming it in the process through literature research,case analysis and other methods.The first part of the article introduces the theoretical basis of the government's responsibility in PPP projects.On the one hand,most of the projects operated by PPP mode are municipal engineering,transportation,ecological construction and environmental protection,which involve social public interests and have notable publicity.According to the theory of public goods,they belong to the category of public goods.It has remarkable non-competitiveness in consumption and non-exclusiveness in income,which determines that relying on a single market supply will lead to market failure,and the government needs to solve its supply problem.On the other hand,providing public goods and public services is one of the functions of the contemporary government.At the same time,from the perspective of PPP project contract,the stage of the project determines that the project contract is embodied in the nature of civil contract in the start-up stage and administrative contract in the franchise stage.The second part of the article begins with the analysis of the legal relationship between the government and social capital.There are trust relationship,legal relationship between shareholders and shareholders,and legal relationship between administrative subjects and administrative counterparts.On this basis,the government should abide by the principle of good faith and provide legal regulation and policy support in the process of fulfilling the contract;assume the responsibility for breach of contract before or after the project is approved;and apply the principle of change of circumstances as appropriate when the laws,regulations and policies change.The third part of the article takes the legal relationship between the government and the public as the breakthrough point.There are legal relationships between the users and providers of public goods and the clients and beneficiaries of public goods.From this perspective,the government should supervise the entry,construction and operation of the PPP project and the withdrawal of the project.If the supervision is not in place,the public will be damaged by the public products or public services provided by the PPP project,and the government should bear joint and several liability.The fourth part of the article,based on the analysis of the legal relationship between the government and the project company,focuses on the legal responsibility of the government to the project company.Both sides have legal relationship of franchise and legal relationship between shareholders and companies.The government should take responsibility for the construction and operation of the project and the right to charge for the project.When the government exercises the right of intervention and takeover in order to protect the public interest,it should abide by the corresponding procedures and systems to safeguard the legitimate rights and interests of the project company.