On The Legal Nature Of China's Public-private Partnership(PPP) Agreement

Since the reform and opening up,China has transformed from the planned economic system to socialist market economy,come into being a market-leading,government-regulation economic system,which is of distinct Chinese characteristics.However,because of being restricted by objective conditions,government's dominant role and limited marketization still exist in many areas,the investment construction gives priority to government while social capital is restricted.In 2015,the Ministry of Finance,the National Development and Reform Commission and the People's Bank of China jointly issued the Guidelines on Promoting the Public-Private Partnership in the Public Service Sector,which officially opened the door for social capital to enter the public services.In just a few years,thanks to the strong support of national policies,PPP undertaking has developed rapidly in China,the number and types have increased rapidly.The increase in the volume of PPP projects has naturally brought a lot of disputes.As a matter that has not been developed for a long time in China,there is still a legislation gap in the field of PPP,and there are only regulations with lower legal effect.Focusing on specific PPP agreement trial practice,there are many cases which can not be relied on any statutes,or even "same case,different judgment".In this case,the definition of the nature of PPP agreement and the establishment of the corresponding dispute resolution mechanism are imminent.In current international legislation experience and the domestic research literature,there is no unified,authoritative definition for the definition and type of PPP,but the understanding of typical PPP mode is consistent: the private sector into the fields which were dominated by the public sector originally,making public service provision present a diversified trend by redistribution of risk and income.The legal relationship subjects involved in PPP mode mainly include the government,social capital,the public and other stakeholders(such as financing institutions,suppliers and consumers enjoying public services,etc.).Government assumes different responsibilities according to the project operation mode and the participation degree of social capital.Scholars put forward different views on the definition of the nature of PPP agreement from the perspective of the subject and content of PPP agreement.Based on the understanding above,this paper discusses and acknowledges the administrative factors in the PPP agreement,and holds that it is impossible to define whether the PPP agreement is a civil contract or an administrative agreement in a one-size-fits all form.At present,franchise agreement,one of the types of PPP agreement,has been characterized as an administrative agreement,in which the rights and obligations in administrative law are obvious.This paper stresses on the analysis and discussion of this,which has become one of the important arguments.After reading different views of scholars widely,combining existing various administrative rules,carding different verdict of disputes in judicial practice and deeply analyzing the legal relationship of PPP agreement,the author finally draw a conclusion: identifying the rights and obligations,especially administrative law on the rights and obligations is the key to defining the nature of the PPP agreement.At the same time,based on the conclusion,this paper puts forward a specific way to define the nature of PPP agreement: adopting the list mode---If the government party exercises the administrative rights and obligations in the list,the agreement is classified as an administrative agreement,and the dispute shall be resolved by administrative procedure,which is presumed to be a civil contract anyway.For the moment,China's PPP reform has entered into a critical period.It is necessary to build an external development environment based on the legal system,improve the legal system,and consummate relevant supporting policies such as tax,price,land and state-owned assets management.Through careful analysis and cautious verification,this paper seeks for a reasonable method to define the nature of PPP agreements,hoping to accelerate the introduction of PPP regulations,and creates a policy environment suitable for the development of PPP.