On The Judicial Review Of My Country's PPP Agreement

Since the New Public Management Reformation has been launched in the western countries rapidly,the governments of those countries choose the privatization to accomplish the administrative tasks providing low-cost but high-quality public service,at the moment when it is time to transform the government functions as well.PPP has been the super star of the privatization,which helps to reduce the administrative costs,improve the quality of public goods and alleviate the fiscal fund pressure,and all of these advantages appeal to the public sector intensively.PPP becomes the most distinctive model in terms of the infrastructure and public utility of China from the beginning of 2014,and the governments attach so much importance towards it so that the public programs with the fund of social capital are eager to entitle with the name of PPP.This new buzzword opens the floodgates to new research of public administration;however,it keeps an awkward place in the jurisprudence system.The concerns of government credibility and the deficiency of reliance interest protection,and the unclear details of risk allocation and benefit sharing reduce private capital's incentive to invest,which result in the whole development of PPP is far below the governments' expectation.The government discredit has been the biggest concern because the dispute resolution,conditions for alteration or recession and responsibility for breach of contract of such long-period and large-scale investment are not explicit,because of which the private capital do not act actively.For this reason,the Administrative Litigation Law revised in 2014 included administrative agreements such as the government franchise agreement and the land and house expropriation compensation agreement,etc.,and the PPP agreement is under judicial review officially.However,the immatureness of the theory of administrative contracts leads to insufficient response of legislative technology and judicial experience.Therefore,the scope of litigation,the basis for review,the review intensity and the judgment are all top needs.Facing the special integration of administrative and consensual characteristic,whether the court has the power to review and how to review has become an urgent issue to be studied.Extraterritorial countries have been influenced by modern administrative theories such as new public management theory,new public service theory and new governance theory.They have accumulated a considerable amount of useful experience both in the legislative and judicial fields,which can be used for reference.PPP,as a new form of public governance,breaks down the barriers of the relationship between public sector and private sector and challenge the traditional administrative law system.Based on the case study,this paper abstracts the issues and experiences of the judicial review of PPP agreement through the big data collation and typical case study of the PPP agreement,and analyzes the causes of judicial review problems in terms of theory and practice.By drawing lessons from the experience of foreign countries and international organizations,we summarize our country's existing judicial experience and propose ways to improve the judicial review of PPP contracts in China.In order to fully protect the rights and interests of citizens,the scope of litigation and litigants should be expanded.What's more,in order to provide fair and equitable judicial remedy,the court should clarify the reviewing standards of legitimacy and rationality on PPP contracts,apply the norms of public law and private law comprehensively,and provide the judgment that are consistent with the characteristics of the PPP agreement.