Research On PPP Contract Government Default Liability

In recent years,due to the strong promotion of the country,China set off a round of PPP boom.The central and local governments have issued a series of PPP-related guidance,and the projects in various places are developing rapidly,China has also become the world’s largest PPP market.Although the PPP model in China’s rapid development momentum,various risks and problems have followed.The number of PPP projects in China is increased but the quality is not high,the actual contract signing rate and project landing rate are low,and the important reason is that there is a large risk of contracting the contracting government,due to the weak spirit of the contract and the lack of credibility,the government’s breach of contract has occurred from time to time,and social capital has been discouraged.Therefore,this paper mainly studies the government’s liability for breach of contract in PPP contract,which includes six parts:The first part,this part mainly discusses the legal nature of the PPP contract.The main nature disputes about PPP contracts in China’s legal circles at present are as follows:"the nature of private law","the nature of public law" and "the mixed nature of public law and private law".This paper analyses the shortcomings of "the nature of private law" and "the nature of public law",and gives reasons for supporting "the mixed nature of public law and private law",demonstrates the view that the nature of PPP contract is " the mixed nature of public law and private law" from both positive and negative aspects.The second part,this paper mainly discusses the types of government default behavior in PPP contract.Combining with the operation practice of PPP model and the relevant regulations and policies in China,this paper collates the possible defaults of the government in the process of performance of PPP contract,including the breach of government payment or the obligation to provide subsidies,the breach of supporting input obligations;the breach of the project’s sole commitment obligation;the breach of the government’s obligation to be responsible for or assisting in obtaining project-related land rights;the breach of government risk guarantee obligations;the breach of non-assignment of contractual obligations;collection or expropriation of shares of the project facility or project controlled by the contracting government;acts of legal change controlled by the government and other possible breaches by the government.The third part,this part discusses the definition,nature and legislative necessity of the government default liability of PPP contract.Based on the dispute of legal nature of PPP contract nature in China’s legal circles,Chinese scholars also hold different views on the nature of government default liability in PPP contracts.On the basis of affirming the mixed nature of PPP contract with private law and public law,this paper holds that the legal nature of the government’s liability for breach of contract should be clarified according to the content and nature of the disputed behavior in PPP contracts,that is,the government liability for breach of contract should be the responsibility of civil nature,and this paper supports the views by quoting the relevant regulations and the Supreme Court decision.The fourth part,this part mainly discusses the principle of imputation of government liability for breach of contract in PPP contracts.Because at present,Chinese scholars have less research on the nature of liability for breach of the contract,so drawing on the existing research on the principle of imputation liability of the general government by Chinese scholars,and considering the complexity of PPP contract itself,this paper agrees that the government default liability in this contract should be based on strict liability and supplemented by fault liability,which also can balance the interests of both parties in the contract.The fifth part,this part mainly discusses the way of government default liability in PPP contracts.According to our country’s relevant provisions on the way of liability for default of PPP contract,this paper selects two main ways to bear the liability:compensation for loss and payment of liquidated damages.In addition,in view of the public welfare characteristics of PPP projects,this paper argues that for PPP project facilities involving infrastructure construction and public utilities in the construction period or operation period,we can add the "government repurchase" as a new way of government default liability.The sixth part,this part mainly discusses the exemptions of government default liability in PPP contracts.In view of the particularity of PPP contract and the particularity of government identity,this paper holds that unlike the exemption of general contract,in addition to force majeure,the exemption of PPP contracts also includes the legal or policy change which is controlled by the non-contracting government,and the government exercises the right of administrative superiority based on the purpose of protecting the public interest of society.The conclusion part summarizes the research content of this paper.The government performance risk is the important reason that hinders the successful implementation of PPP contract in our country,and perfecting the government default liability system of PPP contract from the angle of combining jurisprudence and practice is helpful to promote the standardization of PPP contract legal risk management system.