Research On The Rights Protection Of The Third Party In Government Concession Agreement

As a typical form of public-private partnership,the concession fully embodies the concept of “ruling by contracts” and largely overcomes the defects of traditional unilateral administrative control.However,due to the profit-seeking essence of private subject,the high degree of participation of private subject in the concession increases the probability of rent-seeking.Moreover,out of selfinterest,both public and private subject may infringe the rights of the third party.Therefore,to fill the gap in theoretical research at the present stage,the research perspective should shift to the third party of government concession agreement.On the other hand,research in this area will help to build a better government concession system and promote the development of the public-private partnership.Through theoretical analysis and empirical research,this dissertation demonstrates the rights protection of the third party in government concession agreement from four aspects.The first aspect is the clarification of the basic categories in the rights protection of the third party in concession agreement,including the concept of government concession agreement and the definition of the third party.According to the “mixed-identification standard”,the government concession agreement is a typical type of administrative contract.The contractual and administrative nature of the concession agreement affects rights protection of the third party of the agreement from different angles.This aspect defines the connotation of the third party of the agreement through analogical reasoning,and divides it into two types: the third party representing the individual interest and the third party representing the collective interest.The second aspect is the legal analysis of this dissertation.The theoretical basis of the rights protection of the third party in concession agreement includes the national liability for warranty and the dual mode of rights protection,containing the basic ideas and analytical methods which is useful to the following legal relationship analysis.By dividing the duration of the agreement into three stages of concessionaire selection,agreement conclusion and agreement implementation,the two sets of multilateral legal relationships existing in the three stages can be further identified.The third aspect summarizes the status quo of the rights protection of the third party in concession agreement from rights realization and rights relief,and concludes that the current legal norms related to the protection of the third party are defective.The fourth aspect proposes the basic idea of the proper mode of the protection of the third party's rights.In terms of the construction of legal system,it should pay attention to the competition procedure,the public participation mechanism and the regulation on the concessionaire's obligations and law liability.On the other hand,the rights relief should be carried out from three angles: the administrative reconsideration system,the administrative litigation system and the state compensation system.