Research On The Administrative Priority Right In PPP Contract And Its Regulation

PPP mode is an innovative achievement of administrative management mode combining comprehensively deepening reform and service administration.In order to ensure the needs of public interests,the administrative subject ensures the achievement of governance objectives through the use of administrative priority rights in the "flexible cooperation" of PPP contract.However,at present,the exercise of administrative priority right in PPP contract in China is not standardized or even abused,which has caused damage to the rights and interests of social capital and PPP project itself,and deviated from the original intention of adopting PPP mode to promote resource allocation and safeguard public interests to a certain extent.The thesis firstly starts from the basic concept of administrative priority right in PPP contracts,summarize the concept of administrative priority right based on various doctrines in the academic field,sort out and summarize typical examples on the website of China Judicial Documents,and summarize the common manifestations of administrative priority right in PPP contracts,namely unilateral removal right,unilateral change right,temporary takeover right,etc;Based on the above analysis,this thesis systematically discusses the legitimacy of administrative priority right and the necessity of regulating it.With the analysis of cases and the combing of basic theories,the problems existing in the exercise of administrative priority rights in the current PPP contract have also become prominent,mainly including the abuse of power,the failure to follow the legal procedures,the lack of unity of judicial judgment standards,and the need to improve the relief system;The main reasons for the above problems are that this new governance concept has not been popularized,the current law lacks clear provisions on the administrative priority right in PPP contract,and the definition standard of "public interest" is not standardized,resulting in a series of disputes between the administrative subject and the opposite party when exercising the administrative priority right in PPP contract.Finally,to solve the existing problems,it should be regulated from the following four aspects: the exercise conditions,exercise procedures,judicial review principles and relief ways of administrative priority in PPP contract.The exercise conditions should limit the scope of the administrative subject’s interpretation of public interests;Adopt strict regulations on procedures,improve the notification procedure,registration and filing,hearing system and introduce third-party evaluation to avoid unnecessary harm to the opposite party of the contract caused by the government’s exercise of administrative priority;The subject of judicial review can strengthen the application of the principle of proportionality and better balance public and private interests;In terms of relief,we should establish diversified relief ways to protect the legitimate rights and interests of the other party from two aspects: the non litigation relief path to be improved and the compensation mechanism.