| The history of public private partnerships in China can be traced back to 1990s,which were usually BT or BOT modes.After a long period of practice and summary,both the public sector and the private capital are constantly adjusting and exploring the way of cooperation.With the support of the government,PPP mode has become the mainstream which indicates the coming period of vigorous development.PPP mode advocates an equal partnership between the public sector and the private capital,which was different from traditional public private partnership projects that the public sector always possessed a strong position.In view of the reconstruction of the subject status and the cooperative relationship,PPP mode triggers a heated discussion in theory.Both the attribute of PPP contract and benefit protection of participating parties are valuable research topics.The author believes that the PPP mode should encourage private capital to participate in public private partnerships.Therefore,it is of great significance for the development of PPP mode to fulfill the equal status of private capital and protect the interests of private capital.This paper argues that the PPP agreement should belong to the private law agreement,or at least be able to construct a private contract through the technical means,although the PPP contract has both public law attribute and private law attribute in the current context.Further,if the private property of PPP agreement is determined,we can protect the interests of private capital through setting the contract on project selection,payment,regulation,dispute resolution and termination.This paper is divided into five chapters:The first chapter is an overview of the PPP mode,the author deconstructs the PPP agreement system,then discusses the connotation of the PPP project contract and the significance of benefit protection of private capital.The PPP agreement system is composed of the project contract,the shareholder contract,the financing contract,the insurance contract and the performance contract.The project contract is the core of the PPP mode.The second chapter focuses on the legal attribute of the PPP contracts.In addition to the project contract,other contracts under the PPP agreement system are private contracts.As the core of PPP agreement system,the project contract actually has both public and private elements.However,it should be a civil contract without public elements.The third chapter focuses on the benefit protection of private capital in current domestic PPP mode.At the legislative level,the current legal documents have not made an accurate characterization about the attribute of the PPP contract.It may not be fully compatible that put the PPP contract into the framework of government procurement or franchising.When it comes to regulation,the administrative elements and civil elements are not separated in the PPP contract.Therefore,there are still differences in understanding of the contract and the application of law.At the contract construction level,there is little research on private capital.In order to establish a real public private partnership,we should pay more attention to the benefit protection of the private capital.The fourth chapter analyzes and draws lessons from the experience of foreign PPP practice.The Legislative Guide on Privately Financed Infrastructure Projects is a detailed legislative guidance document,the Standardisation of PF2 Contracts is a authoritative template after several amendments.Both of them can play a valuable inspiration for the construction of the PPP contract.From the angle of legislation and contract construction,the fifth chapter puts forward some suggestions to protect the interests of private capital.At the legislative level,the PPP mode should have a unified legislative guideline,illuminate the attribute of the PPP contract,establish an independent regulatory system,establish diversified dispute resolutions.On the construction of PPP contract,the private capital should pay attention to the selection of the partners,negotiate the payment reasonably,attach importance to the government commitments,improve the termination mechanism. |
