Research On The Judicial Settlement Of Public-private Partnership （PPP） Agreement Disputes In China

In recent years,with the continuous introduction of the Public-Private Partnership（PPP）model by the government in the field of public governance,the cooperation between the government and social capital has received widespread attention from all walks of life,and the controversy that has arisen has also increased.Establishing a more scientific and applicable PPP agreement dispute resolution system is conducive to attracting social capital to participate in public services,transforming government functions,easing pressure on government fiscal expenditures,and providing better public services to the public.For the settlement of disputes in the PPP agreement,a new judicial interpretation has been issued to solve some problems in practice,but some problems have still not been effectively resolved.Before the introduction of the "Interpretation",the dispute settlement of the PPP agreement had difficulties.First of all,regarding the determination of the nature,whether it is academia or legislative norms,the nature of the PPP agreement disputes has not been unified,resulting in inconsistency in the standard of court acceptance,the phenomenon of "playing the ball",and the dispute cannot be properly resolved.Secondly,the mixed nature of the PPP agreement is not suitable for the civil litigation model of the dichotomy.The integrity of the PPP project makes it difficult to split the agreement,but the court setting of the separation of the private bank is the current judicial trial mode in China,and there is a conflict between the judicial resolution approach and the nature of the dispute.After the introduction of the "Interpretation",it provides a clear legal basis for the settlement of PPP agreement disputes.Under the framework of the "Interpretation",the "presumed jurisdiction system" has solved the PPP agreement disputes to a certain extent,but the PPP agreement dispute resolution path No change has taken place,continuing the idea of qualitative,and then choosing a solution,the problem of conflict between agreement attributes and litigation model still exists.In addition,the "Interpretation" does not pay attention to the incompleteness of the PPP agreement.The life cycle of the PPP agreement lasts for decades,coupled with the parties ’limited rationality and changes inthe external environment.The PPP agreement is essentially an incomplete contract,and the legal rules themselves also have loopholes.The mandatory ruling centered on the application of the established rules Sometimes,it is not conducive to the dynamic adjustment and continuous advancement of PPP projects during decades of performance,or when judges make decisions,there are often cases where the parties have no agreement and no statutory law or practice is applicable.At this time,how the judge applies the law to solve PPP agreement disputes have become the most realistic issue.The PPP agreement is an incomplete contract with both public and private law attributes.Based on the special attributes of the PPP agreement,the dispute resolution model needs to be improved on the basis of a new judicial interpretation.The court ’s trial model needs to be a dichotomy between public and private law in China.The following adjustments are made.This article puts forward the idea of setting up a mixed trial organization model under the current administrative litigation framework to adapt to the mixed nature of the PPP agreement.Under the inherent trial model,it provides a living space for PPP agreement dispute resolution.In view of the incompleteness and future-oriented characteristics of the PPP agreement,both parties and the referee of the agreement need to make efforts for the settlement of disputes based on this characteristic,to supplement the shortcomings brought by the incompleteness of the agreement to the dispute settlement,and specifically solve The path is as follows: First,based on the distribution of "residual control rights" in PPP agreement disputes,after the dispute arises,the parties to the agreement should actively negotiate and renegotiate,and introduce a third-party mediation mechanism to resolve the dispute.The second is that when the dispute litigation comes to the court,the court can mediate the dispute.If the dispute must be resolved by the referee and no specific rules are applicable,the referee can supplement the incompleteness of the PPP agreement dispute according to the relevant clauses,trading habits or legal principles to achieve the purpose of resolving the dispute.By improving the dispute settlement mechanism of the PPP agreement,the development of PPP projects is promoted,thereby building infrastructure and public services with higher quality and efficiency.