Research On The Legal Relief System Of PPP Agreement

PPP projects have seen a spurt of growth in China since the Third Plenary Session of the 18 th Central Committee has proposed that social capital can participate in the investment of urban infrastructure by many means in 2013.It is a market generates prosperity and various risks at the same time.How to settle these disputes reasonably and efficiently occur after the risk is an issue we must take into consider.However,the resolution over PPP agreement disputes is utterly chaotic.The reasons include not only theoretical disputes over the way about legal relief,conflicts between normative texts,but also contrary judgments in the judicial practice.This thesis advocates the use of stage thinking to explore the legal relief of the PPP agreement under new administrative law research and drawing upon the“two-step theory”of Germany.This thesis consists six chapters:In the introductory part,this thesis introduces some cases to present the current situation of the settlement in PPP agreement disputes in the judicial practice: the cases applied by civil litigation procedure and administrative as well as.This contradictory situation against the vigorous promotion of the PPP financing pattern in China.Therefore,it is the legal relief system of PPP agreement that the issue specified in this thesis.In the first chapter,this thesis clarify two basic and theoretical problems in the legal relief system of PPP agreement: The first issue is the uncertain concept of PPP,which is the basis for the research of PPP-related systems.By comparing the domestic and international definition of PPP,this thesis considers that PPP as a collective concept should be defined in such a way that“positive description of features + negative list to exclusion”,so that the definition can adapt to the various innovation pattern emerging from the rapid development of PPP better.The second issue is the dispute over the legal nature of the PPP agreement,which is directly related to the choice of the approach to the legal relief of the PPP agreement.This thesis consider that the PPP agreement should have the nature of both public and private law by analyzing three mainstream theory views which includes civilcontract theory,administrative contract theory and mixed contract theory.In the second chapter,this thesis analyzes the practical dilemma about the legal relief system of the PPP agreement from the legislative and judicial aspects.In the legislative aspect,the normative texts between different effective levels and even between different departments in the same effective level conflict with each other;in the judicial aspect,the judgments between courts in different places,courts in different levels and even between different division court of the Supreme Court conflict with each other.It is difficult for Chinese domestic theoretical resources to fully respond to the arrangement of the legal relief system of the PPP agreement.Therefore,this thesis considers to draw on the theoretical resources of related fields in other countries to solve the problems existing in the legal relief system of the PPP agreement in China.In the third chapter,this thesis introduces the “two-step theory” in Germany administrative law and analyzes its advantages and disadvantages.Meanwhile,this thesis introduces the reference and practice for “two-step theory” in Taiwan and points out its enlightenment to the legal relief system of the PPP agreement in China.In the fourth chapter,this thesis bases on the “two-step theory” under the new administrative law theory and the modified subject theory and draws on the stage thinking,divides the PPP agreement into two phase by the time when the PPP agreement is signed:the former stage applies the approach of administrative law relief,and the latter stage applies the approach of civil law relief in principle,but when the government obviously uses its administrative authority to act,it should be recognized as an administrative activity,and the social capital party can choose the approach of administrative law relief to safeguard its rights and interests.In addition,when it is difficult to identify or distinguish the nature of a government activity into a administrative or private activity,it should be settled by administrative litigation with incidental civil action.In the fifth chapter,this thesis straighten out and summarizes the full article.And in other instance,this thesis explains some problems that may still exist in the article to prepare for further research.