| With the development of the public-private partnership model,the number of disputes over PPP agreements has also increased.At present,there are no specific laws and regulations to adjust public-private partnerships in China.There are differences in the understanding of the nature of the PPP agreement,and the nature of the agreement affects the choice of the dispute resolution path,which makes it difficult for the public and private to find an effective relief path to protect their legitimate rights and interests.In order to effectively safeguard the interests of both the public and private parties and ensure the sustainable development of public-private cooperation,it is urgently necessary to "adjust measures to local conditions" and establish a sound,feasible,certain,and effective dispute resolution mechanism.PPP agreements has the characteristics of public welfare,administration,process and incompleteness.The disputes mainly occur in the performance stage of the agreement.The types of disputes,claims,and reasons for the disputes are diverse and complex.The traditional nature analysis and relief path setting from the perspective of contracting elements can not fully meet the needs of practice.The judicial interpretation of administrative agreement affirms the application of civil legal norms in administrative agreement dispute cases.Compared with the civil litigation,the administrative litigation relief path can effectively restrict the abuse of "residual control" by both public and private parties,and has more advantages in the dual protection of public and private interests.Under the framework of PPP agreement being an administrative agreement,the existing research mostly chooses the relief path from the perspective of the conclusion of the agreement and the elements involved in the dispute claim,ignoring the incompleteness of the PPP agreement which is different from the classical contract stipulated in the Contract Law.Type,also did not fully notice the difference between PPP agreement and ordinary administrative agreement.The dispute caused by the performance of PPP contract has its particularity,and the current dispute resolution mechanism has some difficulties in dealing with the particularities of disputes.The mandatory ruling centered on the application ofestablished rules and the confrontational characteristics are not conducive to the dynamic adjustment and continuous advancement of cooperative projects during the performance period of several decades,nor to the disputes caused by policy changes in PPP agreements.The existing administrative collegial panel is difficult to deal with the overall settlement of the dispute over the PPP agreement.and the provisions of the contract law on performance disputes cannot meet the special nature of PPP agreement disputes,no trial without complaint and the protection of the stability of the agreement weaken the judicial supervision over the administration.The effective settlement of PPP agreement disputes,not only need to optimize the composition of the administrative collegiate panel to fully protect the public and private interests,but also need to supplement judicial supervision over administrative powers by means other than rulings.In addition,need the non litigation dispute resolution mechanism to supplement the limitations of litigation dispute resolution path,so as to promote the legal,reasonable and harmonious settlement of disputes between both parties. |
