The Dilemma And Solutions Of The Government Terminating The PPP Contract

The PPP contract occupies the central position of the PPP,opening the publicprivate sector dialogue portal.The termination of the PPP contract has brought the legal relationship between the two parties to the ruin,and will also shut down the balance of public and private interests which change all the time.The termination of the PPP contract is the government’s basic mean to break the deadlock.The government assumes the responsibility to disperse the contract and performs unfavorable factors at any time based on the fundamental responsibility to the public interest,where is different from the termination of the private contract which is based on profit.The dual structure of the termination power and right is a special structure for the government to terminate the PPP contract.However,excessive reliance on rigid adjustment means,lack of flexible governance thinking,and ignorance of the overall coordination of new and old functions have caused many difficulties under the dual structure.The PPP contract takes the realization of public interests as the primary goal,but it attaches importance to the protection of public interests and cannot ignore the protection of private interests.The commonality of the dilemma lies in the neglect of the latter.Government credit has fallen to the bottom,social capital has backed on the sidelines,thus the PPP cannot continue improving its ecology sustainably.The root comes from the insufficient understanding of the new ratio of public and private elements in the PPP contract,which contain overplaying the color of power elements,weakening the means of rights with tension,and making the parallel of power and right a simple addition.The hazards of standing still are gradually revealed,we should not let traditional power thinking manipulate or simply apply general termination right.To solve the dilemma,we need to re-examine the power and right,carry out a new interpretation and shape it in a new context.At the same time,the establishment of termination right has the integrated system of orderly exercise.This paper adopts the structure of "total-pointstotal",and discusses from the following aspects specifically:The first chapter discusses the legitimacy basis of the existence of terminating firstly.Government terminating the PPP contract is widely applied,its source needs to be discussed based on the perspective of its legitimacy foundation.Only with a solid legitimacy foundation can it be guided calmly to play a better role in practice.The second is to clarify the source of the termination.The multiple roles and functions of the government under the PPP constitute the academic basis for the source of the government’s PPP contract termination.The diversification of government roles in the PPP requires the dual path of government functions,which make the source of the termination both including the traditional power and the PPP contract.Finally,the dual source path of the government’s termination endows the performance of the dual structure of the termination system,that is,the duality of termination power and termination right.The second chapter discusses on the basis of the first chapter that the dual structure of the government’s PPP contract termination seems to provide a double guarantee for the termination purpose,but it has not been able to make the best of the both worlds.Instead,a messy performance makes the termination in trouble.This chapter tries to dissect the dilemma caused by the dual structure and seek a way out of the dilemma.The predicament is first manifested in the termination of the willfulness of the exercise of power.Firstly,the exercise of power has the possibility of failure,while lacks of detailed and systematic legislative regulations;secondly,the predicament is manifested in the lack of attention to the role of termination right as a glue in the balance of public and private interests,and the theoretical content of the termination right is not clear;the dilemma is finally manifested in the incompatibility between termination power and termination rights under this system,as well as the entanglement and contradiction arising therefrom.The termination of the PPP contract often affects the whole body.The key to breaking through the dilemma is to separate and examine the performance of the two in the PPP contract firstly,and put the two together under the thinking of system coordination.Chapter 3 and Chapter 4 discuss the termination power and termination right respectively.The third chapter takes the idea of controlling power as the specific way to solve the problem of disarming power.In practice,the high degree of preference for revocation of power lies in the solidified understanding that revocation of power and traditional power are in the same line.It does not pay attention to the transformation and restriction of administrative behavior by contract mode.The power element in the PPP contract shows that the revocation of power is inevitable.The key to the problem is to determine the limits of power to be lifted.The termination power is generated based on the purpose of public interest protection,and should be restricted by the purpose of public interest protection.Clarifying the public interest is the basis for describing the outline of termination power.The limits of termination power are to determine who exercises the termination power,under what circumstances and how to exercise the termination power.These three issues,therefore,we need to focus on the definition and construction of the termination power in terms of subject definition,substantive norms and procedural settings.The fourth chapter takes a perfect idea as a specific way to solve the problem of termination right.The spirit of private law is the soil for the creation and maintenance of PPP cooperation.Autonomy of will is of great value in PPP contractual relations.The recognition of state intervention does not mean a comprehensive replacement of private law means.The tension and flexibility of termination right enables it to play an active role in the termination of PPP contracts.From the perspective of enhancing trust value and strengthening flexible governance,the government should actively integrate it and cannot easily deny.The improvement of the government’s termination right in the PPP contract is inseparable from the comparison,and the basic performance of the termination rights can be learned from the comparison with the general termination right.At the same time,review the termination right based on the specific requirements of the PPP contract,supplement and improve the exercise rules.While focusing on solving the problem of weakening,analyzing the nature of the special type of termination right(privileged type),and alleviating the doubts about exercising the termination right.The fifth chapter is based on the need of coordinating the termination,improve both the entity and procedure.Macro-planning for the removal of power and right,to make the two complement each other,it is necessary to clarify whether the exercise requires a certain order and how to set a logical order.This construction revolves around thinking about the importance of the public and private interests.On this basis,a detailed study of the relief after the exercise of the termination should be carried out.