| PPP is an imported word.The origin of traditional PPP can be traced back to France in the 15 th century,while modern PPP originated from the British PFI model.The unclear legal nature of PPP Project Contracts in China leads to huge legal risks for PPP projects,which hinders the vigorous development of China’s PPP market.The dilemma of defining the legal nature of the PPP project contract in China mainly lies in the complexity of the PPP project contract subject and the dual nature of the contractual rights and obligations.There are many controversies about defining the legal nature of PPP Project Contracts among Chinese scholars.No matter how we define the whole PPP Project Contracts as civil contract,administrative contract agreement,mixed contract or other contracts,there are conflicts with our current laws and regulations,defining the standard contains a lot of loopholes,disorders of the dispute for the PPP project.The definition of the legal nature of the PPP Project Contract is also controversial in the trial practice of our country.Some judges assume that the subject,the purpose and the right of administrative interests should be taken as the defining criteria,while others submit that "the main content of rights and obligations in administrative law" should be taken as the defining criteria.In the trial practice,the definition standard has the possibility to expand the administrative agreement improperly,which is not the best choice.The judicial interpretation issued by the Supreme People’s Court at the end of 2019 included the PPP Project Contracts within the scope of the administrative agreement in accordance with its Article 1.However,due to the vagueness of the first article of judicial interpretation,it is not suitable as the best definition standard either.It is a feasible way to return to the essence of PPP in China and examine the legal nature of PPP Project Contract.The essence of PPP in China is a cooperative mode in which the government pays a certain profit model in exchange for the provision of public facilities or public services by social capital under the supervision and management of the government.The nature of profit model which the governments pay shall treated as the standard to define the legal nature of the PPP Project Contracts.Under the new standard,the PPP Project Contracts can be classified as administrative agreement or civil contract clearly,which makes no conflicts in our current laws and regulations and also promotes the vigorous development of PPP market in China. |
