| In recent years,PPP model has been widely promoted and used in China,which is of great benefit to improving the efficiency and professionalism of public facility construction and public service supply,and alleviating the financial pressure of government departments.However,a series of disputes about PPP agreements have followed,among which the administrative subject has a prominent problem of weak administrative power control in PPP projects,which squeezes the legitimate interest space of social capital parties and weakens the participation enthusiasm of social capital parties,which is not conducive to the long-term,stable and healthy development of PPP model.In addition,the qualitative ambiguity of PPP protocol in China makes it difficult to solve disputes systematically.Positioning the PPP agreement as an administrative agreement is more conducive to the management and control of the administrative power in the public-private partnership and facilitating the standardized and systematic management of PPP mode.This paper is divided into three parts.The first part analyzes the basic connotation and denotation of PPP agreement,and focuses on the qualitative dispute of PPP agreement.It points out the rationality and possible defects of civil contract theory and mixed nature theory,especially the lack of ability to standardize and resolve the dispute in the practice of PPP agreement.The second part analyzes and demonstrates the administrative agreement theory of PPP agreement and responds to all kinds of doubts about the administrative agreement theory.In terms of the constituent elements of PPP agreement,PPP agreement reflects the obvious administrative legal relationship,and conforms to the judgment standard of administrative agreement in the general theory of judicial practice.In terms of the actual demand of power control,the positioning of administrative agreement is helpful to strengthen the regulation of rigid rules on the administrative power in PPP agreement,to avoid its escape into private law,so as to safeguard the interests of social capital.At the same time,the supervision status of administrative subject should be emphasized to avoid secondary monopoly.The third part is based on the regulation and control of the bank power in the PPP agreement.Firstly,the role of the administrative subject is defined as the partner and guarantor in the PPP project,and the rights and obligations of the administrative subject are defined in each stage of the PPP agreement.On this basis,the paper distinguishes two different stages of signing and performing administrative agreements,and discusses the possible ways to regulate and control administrative power from the aspects of entity or procedure.In the end,it puts forward the planning and improvement of the relief channel of PPP agreement,including the litigation path and non-litigation path,and puts forward the strict legal responsibility of the administrative subject for the abuse of administrative power in PPP project.The fourth part is the conclusion,based on improving the PPP protocol legalization level,put forward the suggestions to accelerate the PPP protocol high-level legislation.Through the effective management of PPP through high level national legislation,the integration with the existing legal norms can be realized. |
