Research On The Identification Of Legal Nature Of PPP Project Contract

PPP,also known as PPP model,is the abbreviation of Public-Private Partnership,which means the teamwork between the government and private funds.A PPP project contract means a contract ended at the government(the government or a government-authorized institution)and the private partner(social capital or project company)for PPP project cooperation in accordance with the law.The PPP project contract is the base and key of the whole PPP project contract system.Because it has both the feature of public and private law,there has been controversy over the certification of its legal nature.This dissertation does theoretical and practical research on the recognition of the juristic features of PPP item agreements,and finds that there are three mainstream views in the theoretical fields,called "administrative contract theory","civil contract theory" and "mixed contract theory".In judicial practice,there are mainly two adjudication viewpoints,namely,the adjudication viewpoints that recognize the PPP project contract as an administrative contract and the adjudication viewpoint that recognizes the PPP project contract as a civil contract.After further sorting out relevant laws and regulations and rules of ministries and commissions,and analyzing the meaning criteria of the conclusion of typical cases,it is found that our country has some problems on the legal essence of PPP project contracts.They are reflected in: first,the legal norms are contradictory,and the basis for determination is not clear;second,the rank and effectiveness of the regulations of ministries and commissions are low and should not be used as a basis for civil judgment;third,there is no legal basis for identifying a PPP project contract as a "hybrid contract";the fourth is that the court’s determination of the PPP project contract is not uniform;the fifth is that the PPP project contract is equal to the government franchise agreement;the sixth is that the dispute over the "mixed clause" of the PPP project contract cannot be resolved under the dual division model of public and private law.Because the PPP project contract has both administrative and civil characteristic,but the civil attribute is dominant,and the administrative factors account for a small number and can be identified.So,this article systematically thinks the attributes of my country’s PPP projects and the current juristic and regulatory system,from the practical solution to the problem.From the perspective of this paper,it is proposed to identify the PPP project contract as "administrative factor + civil contract".Then,the above viewpoints are demonstrated from the view of validity.At the theoretical field and the field of legal use,my country’s incorporation of PPP project contracts into civil law regulation has the support of substantive law;at the level of practical needs,PPP project contracts are identified as "administrative factors + civil contracts".It is conducive to attracting private funds,providing whole part to the superiority of the PPP model,and achieving national policy goals;it is also beneficial to the effective method of PPP project disputes,and the smooth realization of the goal of public-private cooperation.