Research On The Arbitration Of Government Franchise Agreement: Dilemma And Solutions

The government franchise agreement is a legal concept transplanted by our country.The concept has been evolving,but disputes on definition of its nature and the establishment of relief mechanism followed.From the Perspective of the purpose of protection of rights,no relief means no right,the protection of rights of all parties in franchising legal relationship depends on the scientific construction of relief mechanism.The decisive factor of relief mechanism establishment is the nature of government franchising agreement.Therefore,its logic should be based on the definition of nature to construct efficient and diversified relief approaches so as to achieve the protection of rights.The nature of concession agreements has always been the focus of controversy between administrative law and civil law circles.A variety of viewpoints have emerged,such as “civil contract”,“administrative contract”,“economic contract” and “compound contract”,but there's no definite conclusion.Lack of legislative definition and theoretical debate can not provide clear guidance for judicial practice.Attitudes towards the nature of the agreement in judicial trials are wavering and repetitive.The characteristics of concession agreement conforms to the connotation of administrative contract,such as the subject specificity,the legality of the applicable field,the directivity of public interest and the strictness of the contracting procedure,so it should be classified as administrative contract.Therefore,this paper combines the criteria for determining the nature of contracts,and combines the comprehensive standard with the role of executive power to prove and promote the nature of the administrative contract of the concession agreement.Whether it is from the perspective of comparative law or from local practice,relevant disputes over government franchise agreements are mostly resolved through civil remedies.The “Administrative Procedure Law” and its judicial interpretation were amended in 2014,disputes over government franchise agreements were incorporated into administrative proceedings.As a result,traditional civil remedies have no application under the perspective of normalism.The analysis shows that although the government franchise agreement is based on administrative nature,relationships among agreements such as property and services are main aspects,and disputes often originate from here.What's more,the rights and obligations in this kind of economic transaction relationship are mainly established and exercised according to the civil legal norms.When it comes to the dispute,it may be economic disputes and other “civil disputes” without executive power.According to Article 2 and Article 3 of the “Arbitration Law” on the scope of acceptance of cases and combining the definition of “administrative disputes” in the legislative background,it can be deduced that the government franchise agreement has not been excluded from the scope of acceptance of cases in the “Arbitration Law”.Therefore,arbitration should be established along with administrative litigation as a diversified administrative relief mechanism.At the same time,the rules of the arbitration on the government franchise agreement should be constructed on the basis of the existing rules on civil and commercial arbitration,the target of preferred is public good,so as to ensure the smooth operation of the government franchise projects.