| The application of the PPP model in China can be traced back to the 1990s.However,local governments in China have always been more inclined to define this public-private partnership as a new type of financing channel aimed at resolving the financial burden of the government They have not fully realized the positive effect of the PPP model on the improvement of government public service capabilities and public interest protection.In the early stage of PPP project implementation,local governments even deliberately evaded the written contractual relationship between the local government and the social capital,resulting in the government's arbitrary breach of contract within the entire project operating cycle,and the expected income rights of the social capital party were seriously damaged.At present,the practice of China's PPP model has become more in-depth,but China has severely lacked the"top-level design" in terms of the establishment,approval,construction,and operation of the PPP project.This has led to the huge investment ricks toward social capital when they enter the PPP project area.Even if it is a basic PPP project contract to determine the rights and obligations of both public and private parties,it may also lead to imbalances in the protection of interests due to the flaws in the design of specific terms or the uncertainty of the validity of the terms.As a contractual collection of a series of partnerships between public and private entities on the construction of public projects,PPP project contracts play a holistic control role in the whole process of project.However,due to the long cooperation period,huge investment amount,slow capital generation,large number of stakeholders and unstable cooperation environment,the PPP project is vulnerable to the default risk from the government in this partnership.The outstanding performance is the lack or incompleteness of the exclusive clause in the PPP project contract,which leads to serious damage to the private entity's investment interests.On the one hand,the government has obtained financial support from the social capital side on the public infrastructure,but on the other hand,it cannot guarantee that the income of the PPP project will not be affected by the competition factors of other public projects hosted by the government within a certain range according to the requirements of the social capital party.Obviously,it is contrary to the original intention of the PPP project contract.In order to reveal the important role of the exclusive clauses in the PPP project contract and the domestic PPP model practice,the paper firstly defines the basic connotation of the exclusive clause,and the related concepts such as the PPP model and its contract system,The franchise system was analyzed in association;Secondly,it combines the theory of government guarantee behavior and the theory of administrative monopoly regulation,and deeply analyzes the legality limit of the exclusive clause in the PPP project contract;Furthermore,two typical cases concerning the application of exclusive terms at home and abroad are cited.From the perspective of empirical analysis,the reasons for the failure of China's first PPP project and the judicial concept of the 91st expressway dispute resolution in California are deeply summarized.Finally,it focuses on the practical dilemma of the exclusive clause in the current PPP project contract in China,and discusses the top-level system design plan that should be carried out in the operation of China's PPP project.Through the analysis of the exclusive terms and related issues,the paper mainly draws the following basic conclusions:First,the exclusive clause is the core clause of the PPP project contract and the key link in the construction of the PPP project contract system.Its practical significance is mainly reflected in the promotion of loans and increase the government's default cost,and fully protect the investment interests of social capital parties.Second,the government guarantee embodied in the exclusive clause is not a legal guarantee,but it is still a legally binding administrative contract clause,and it is also a legal basis for the protection of social capital rights.At the same time,the social capital party strives for a certain degree of assurance that it should follow certain legal limits and avoid legal risks that are ineffective due to violation of the legal prohibition.Thirdly,it can be seen from the practice of the Quanzhou Citong Bridge and the PPP project of the 91 Expressway in California,the lack of exclusive terms including the specific obligations of the government,liability for breach of contract,will directly lead to the final collapse of the PPP project.The social capital party must not only strive for non-competitive protection,but also Pay attention to the design of the exclusive terms in the PPP project contract,to avoid the obstacles to the application of the exclusive terms.Fourth,the establishment of a sound PPP project contract and its exclusive clause dispute resolution mechanism should,on the basis of complying with specific legal logic and principle concepts,timely construct the legislative norm of the PPP model and rationally arrange the supporting system to avoid existing policies,The judicial practice dilemma caused by the regulations,trying to realize the establishment and improvement of China's PPP dispute resolution path comprehensive system,in order to benefit China's PPP model legislation,the establishment of the judicial system and the development of its practice. |
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