| With the continuous integration of China’s economic operation with the world,the public-private sector cooperation model(PPP)has injected new vitality into China’s economic development and social construction.However,in recent years,due to the weakness of the global economy and the lack of PPP related legislation in China,the application of PPP model in China has some shortcomings.First of all,the law on which PPP contracts should be based is controversial in the academic circle.Second,as a special regulation in the field of PPP,the regulations on cooperation between government and social capital in the field of infrastructure and public services(Draft for comments)is not implemented formally due to the unclear superior law.In the process of combing and studying the domestic PPP projects,the author sums up the problem that private capital is not active in the application of PPP projects in China due to the uncertainty of PPP laws and policies.In order to solve this problem,the author tries to do a little for the PPP legislative cause.In order to study the risk prevention of private sector in PPP contract from the perspective of legislation,this paper is divided into the following four parts:The first part is to analyze the necessity of strengthening the legislation of private sector risk prevention in PPP contracts.The author first analyzes the reasons why the private sector in PPP contracts needs special protection in legislation.The first part is the particularity of PPP contracts compared with general civil and commercial law contracts.The second part is that in the process of contract performance,the private sector is often confronted with unequal status and information asymmetry,the lack of effective relief means and other risks,and the lack of risk prevention and control mechanism will make the government face the risk of credibility decline,which will eventually lead to the imbalance of interest distribution,and it is urgent to prevent the risk of the private sector in PPP contracts;thirdly,strengthening the protection of the private sector in legislation indirectly improves the government credit,which is conducive to the normal development of PPP projects;the fourth is to help increase the participation of social capital in PPP projects,form a cooperative relationship of benefit sharing,risk sharing,equality and mutual assistance,and eliminate private sector concerns.The second part is the research on the current situation and existing problems of the legislation of private risk prevention of PPP contract in China.From the current legislative situation of PPP projects in China,there is little about the risk prevention of private sector in PPP projects,especially the distribution of residual rights,as well as the situation of government default or unilateral termination of PPP contract projects,which greatly damages the legitimate rights and interests of private investors.Based on this situation,the author summarizes the following problems in the legislation of private sector risk prevention of PPP contract in China:first,there are problems in the government guarantee in PPP contract;second,the government transfers the excessive risk to the private sector;third,the distribution of residual rights in the process of PPP contract performance is not clear;fourth,the government’s unilateral breach and free termination of contract lack of reasonable constraints;Fifth,the private sector lacks an effective way of relief when its legitimate rights and interests are damaged.These problems hinder the smooth implementation of PPP contract and are the blind area of relevant legislation of PPP contract.The third part is based on the problems raised in the legislative status of the PPP contract private risk prevention,the horizontal review of the American PPP contract loose management policy,the Canadian PPP contract policy adjustment model,and the Japanese PPP contract strengthen financing attributes to regulate PPP project risk prevention measures,preliminary study of the legislative provisions and legislative bodies in these three countries,PPP contract residual rights allocation rules,contract risk allocation and risk prevention provisions,government default treatment,and risk transfer Compare and analyze the legal conditions such as regulations and merge them in the practical characteristics of the political,economic,cultural,legislative models and other fields,and summarize useful experiences that can be replaced.The fourth part is to combine the latest legislation of the Constitution and the judicial judgment,and put forward the perfect legislative path of PPP contract risk prevention from the perspectives of legislation,justice,relief methods and risk bearing,including:strengthening the legislation on the guarantee system in PPP contracts,According to the principle of balance of interests,the risk is reasonably distributed,the legislative provisions on the distribution of residual rights in a sound PPP contract,strengthening the constraints on unilateral breach of the government and the free termination of the contract,and the remedy method for the legal rights and interests of the private sector with perfect legislation The text will be expanded in detail. |
