Studies On Legal Nature Of PPP Contract In China

In the field of public goods supply in China,PPP,as a mode of supply,has been widely accepted by local governments and kinds of social capital.Under the background of huge of projects arising and lots of disputes appearing in China,the PPP mode still has great practical difficulties,and there are different views in the theoretical circle,judicial practice and normative documents on the nature of PPP contract,and the settlement method of PPP contract disputes is also uncertain.For these difficulties,the author thinks that the core of the above problems lies in the positioning of the legal nature of PPP contract in China.Around this core,based on the definition of relevant concepts of PPP contract and the positioning analysis of its theory,value and principle,and on the basis of distinguishing civil contract and administrative agreement,analyzing various viewpoints and theories,and subdividing their types,the author claims that,while containing administrative factors,the nature of PPP contract,except for special circumstances,belongs to civil contract.In this regard,the author collected and analyzed lots of cases,and analyzed and summarized the opinions of judges related to those cases,which can confirm the objective existence of the basic civil nature in the PPP contract.In order to prove the view of this paper,the author makes a theoretical analysis and demonstration from economic development,system supply,social capital rights and interest protection,foreign investment,correctionof historical tradition,effective relief of contract disputes.In the theoretical analysis,the author thinks that the subject of PPP contract includes the government and various forms of social capital.The author thinks that its unique object,subject and the content of PPP contract can prove its basic civil nature.At the same time,based on the analysis of various social factors in China,whether from the perspective of economic development,system supply,social capital rights and interest protection,or from the aspects of opening up,rectifying historical tradition,and settlement of contract disputes,China's social objectively needs PPP contracts of basic civil nature.Based on this view,the author analyzes that the PPP contract is a nameless contract,which is different from the famous contract,such as partnership contract,construction contract.However,based on the characteristics of universality,large amount and large capital,PPP contract has the conditions of being famous,which can and should be realized by PPP special law.At the same time,on the basis of the above discussion,this paper further claims that the nature of the dispute should be distinguished from the nature of the contract itself.It is suggested that the civil and administrative dual approaches should be adopted according to the contract content involved in the contract dispute.The disputes related to administrative factors in the contract can be solved through administrative means,and other disputes can be solved by civil litigation,arbitration,expert award and other multiple ways.