The Legal Nature Of Some Undetermined PPP Contracts And The Construction Of Dispute Resolution Mechanism

In recent years,streamlining administration and delegating power and promoting the transformation of government functions have become an important measure of China’s public service reform.PPP projects introduce social capital to participate in the investment and construction of infrastructure and public service,which just fits the development concept of China’s public service reform.However,at the present stage,China’s PPP project contract disputes are in the running in period of reform and innovation and legislation lag,and the legal nature of some PPP project contracts has not been concluded,so there are differences in the views of dispute resolution.Due to the delay in the introduction of PPP special legislation,the legal community has been debating about the legal nature of PPP project contracts,generally presenting three theories of administrative contract theory,civil contract theory,administrative + civil mixed contract theory.As a basic problem in PPP project,the definition of the legal nature of PPP project contract is closely related to the choice of dispute settlement approaches.However,no matter what kind of legal nature of PPP project contract is advocated,it cannot be denied that it has both administrative and civil elements.In November 2019,the Supreme People’s Court on the handling of administrative agreement provisions on some issues of case(hereinafter referred to as the "administrative agreement judicial interpretation"),for the PPP field practice and theory is to define the nature of the PPP project contract has had a profound impact,including the idea that after this,the PPP project contract is the legal nature of administrative properties,Its dispute can only use the administrative remedy means,negates the agreed arbitration and the civil litigation dispute settlement way.But also attracted to match some questions,such as the "administrative agreement judicial interpretation" first article emphasizes whether "has rights and duties under administrative law or the administrative functions to achieve goals",whether this qualification means that the rule only will meet certain conditions of PPP protocol to into the administrative case scope of accepting cases? Whether this raises a new problem for the academic circle,that is,how to define the connotation of attributive terms such as "agreement with rights and obligations of administrative law"Therefore,for the legal nature and mechanism construction of PPP project contracts,this paper holds that: First,make sure the research object,the government signed the PPP agreement on the mode of franchise agreements as well as the administrative penalties concerning administrative planning,such as the specific administrative act of the part of the contract can be directly as an administrative contract,a small number of involved in government procurement behavior,project repurchase,the compensation for the project after the termination of the contract,etc.Can be directly as a civil contract,The key lies in the other part of the contract whose legal nature cannot be determined.This part is the most controversial part,which is the research object of this paper.Combined with the "administrative agreement judicial interpretation" in the precondition of the first and the second to the provisions of the administrative agreement,and comparative analysis of the PPP project contract dispute cases in the administrative agreement judicial interpretation issued before and after the change,this paper puts forward that the PPP project contract legal nature presumption principle,and on the basis of project operation sequence and the disagreement specific classification.Based on this,the author tries to seek the best scheme to construct the contract dispute settlement mechanism of PPP project,and puts forward some suggestions to improve the construction of PPP mechanism from the institutional level.