Study On Legal Demarcation Of Public-private Partnership Agreement ——Combination Of Article1and Article 2 Of "Provisions Of The Supreme People’s Court On Several Issues Concerning The Trial Of Administrative Agreement Cases"

The legal nature of the public-private partnership agreement（hereinafter referred to as "PPP agreement"）is diverse in the academic world and there are contradictions in it when it comes to legislative provisions.In addition,the judgments towards cases of PPP agreement from courts at various levels in different places are not uniform in judicial practices and the same thing happens even within the Supreme Court.In order to meet this requirement,on November27 th 2019,the Supreme Court promulgated the "Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Agreement Cases"（hereinafter referred to as "Administrative Agreement Provisions"）.In Article 2,it says that PPP agreement can be filed of administrative litigation under the condition of " A public private partnership agreement conforming to Article 1 of these Provisions".Therefore a high-level issue related to whether PPP agreement is an administrative agreement is how to define administrative agreement.More precisely,it is concerned with different options in aspects like standards used to distinguish administrative contract and private law contract,rules of application of regulations on PPP agreement and whether it is defined as public or private,the way of judicial assistance and so forth.This article will try to answer the equally controversial high-level question of "the boundary between an administrative agreement and a civil contract" on the basis of clarifying PPP related disputes.Also it will discuss the definition of the core standards of PPP agreement based on comprehensive standards summarized from jurisprudence,relevant cases and relevant foreign theories.Based on the ideas above,this article can be divided into five parts.The first part is introduction.This part takes the dispute of the legal nature of PPP agreement as the starting point and proposes the question of how to demarcate PPP agreement in the public and private legal relationship.It determines the research object of this article,based on which,literature review is sorted out from relevant domestic and foreign researches.The second part analyzes the limitations of the "Administrative Agreement Provisions".Though it involves the determination of the nature of the PPP agreement in Articles 1 and Article 2,the content is vague and broad and also the determination standard is not clear enough.The document of reference case published subsequently put forward "four elements and two standards",which plays as a guideline to some degree but because its content only presents a macro summary and is not rich and specific enough,it still cannot dispel doubts and stop disputes on PPP agreement.The third part clarifies the complex relations related to PPP agreement.This part conducts theoretical researches on PPP model and PPP contract groups and analyzes the disputed relationship between PPP,franchise and administrative litigation which pave the way for the following analysis.The fourth part studies the aspects of the role and status of the comprehensive standards,the method to use them as a whole and the way they can be used to deal with contradictions based on the analysis of comprehensive standards summarized from jurisprudence,relevant cases and relevant foreign theories.Also the connotation of the standards will be enriched and judicial application will be presented in this part.The fifth part is about a suggestion of improvement for legal demarcation of PPP agreement.Based on the researches of the former four parts,this part tries to explore the core standard for demarcating PPP agreement in order to identify the nature of PPP agreement in judicial practices via clear and straightforward methods.The creation of this article lies on the innovation of research objects and research methods.At present,there are few articles that analyze and interpret this judicial concept and current academic researches on the legal nature of PPP agreement only focus on three theories and their relevant reasons for argument.This article starts with the analysis of judicial interpretation of Article 1 and Article2 and further refines the research by attempting to clarify the demarcating standards of PPP agreement in its dual legal nature of civil law and administrative law based on the recognition that the PPP agreement is a mixed contract.