The Legal Nature Of PPP Project Contract

The PPP model is called government-social capital cooperation in China,which refers to a cooperative relationship between the public and private sectors to achieve public tasks.This model has been praised by the government for easing government financial tension,improving the efficiency of public service provision,and promoting the transformation of government functions.In the PPP model,the project contract is the core element for maintaining the cooperation between government and social capital.The public and private sectors,through negotiation,clarify their respective rights,obligations and risks,predict various risks that may occur in the implementation of the project.The legal nature of the PPP project contract directly affects the applicable rules of the contract and the choice of judicial remedy channels.However,none of the existing laws and regulations in China make clear the legal nature of the PPP project contract,nor does it provide uniform regulation on the remedy channels for disputes over the PPP project contract.In judicial practice,there are also differences and confusions in the identification of the nature of the PPP project contract and the remedy channels.Therefore,it is necessary and urgent to determine the nature of the PPP project contract,so as to clarify the dispute settlement method of the contract dispute.This article first sorts out the concept of the PPP model,and concludes that the PPP model has many types.According to the general statement,it can be roughly divided into contractual PPP and institutionalized PPP,and contractual PPP can be divided into government-purchased PPP and franchised PPP,which basically corresponds to the Chinese government-paid PPP and user-paid PPP.Afterwards,through the investigation of the administrative contract system outside the territory and in China and the identification elements of the administrative contract,it is concluded that the contract subject should be used as the core element to distinguish the civil contract from the administrative contract.Specifically,as long as it conforms to the contract is as an alternative to administrative action,the contract stipulates that the administrative agency has the obligation to make administrative sanctions or other public power measures,or contract mainly stipulates people’s rights and obligations in the administrative law,the contract can constitute the relationship of rights and obligations in administrative law.When there is a case where the attribute of contract rightsand obligations cannot be clearly distinguished,it should be presumed to be a civil contract.According to this identification standard,the PPP project contract is a kind of hybrid contract.The project contract under the government-purchased PPP model can be regarded as a civil contract due to its obvious civil rights and obligations,while the project contract under the franchised PPP model can be regarded as an administrative contract due to the grant of franchise by the government is a typical administrative right and obligation.Due to the nature of PPP project contract,the remady approach to the PPP project contract should be based on the nature of the contract.That is to say,disputes over PPP project contract which belongs to civil contract should be resolved through the dispute resolution mechanism of civil lawsuit,while disputes over PPP project contract which belongs to administrative contract should be resolved through administrative litigation.It is possible to improve the existing litigation remedy mechanism by establishing a internal file circulation system in court and granting administrative agency plaintiff qualification.At the same time,allowing the mediation system and arbitration procedure to be applied in disputes over PPP project contract will better resolve disputes.