On The Identification Of The Nature Of PPP Contract

The Supreme People’s Court promulgated the provisions of the Supreme People’s Court on Several Issues concerning the trial of administrative agreement cases at the end of 2019,in which articles 1 and 2 stipulate the nature of PPP contracts.For a long time,PPP cooperation has played a great role in many public areas in China,but under such a huge volume of PPP,the nature of PPP contract is still an outstanding issue.Previously,various departments have formulated their own policy documents on the nature of PPP contract.The provisions of this judicial interpretation seem to seek a final conclusion for the nature of PPP contract.However,this conclusion does not meet the expectations and requirements of all parties,which has triggered a new round of discussion on the nature of PPP contract.In addition to the qualitative debate in the theoretical circle,the practical circle can not reach a consensus on this.Through the analogical analysis of judicial cases after the introduction of judicial interpretation,it can be found that the determination of the nature of PPP contract in practice is not consistent,but more chaotic.Not only the parties to the lawsuit will have different opinions on the nature of PPP contract,but also the judgments on the nature of PPP contract between courts often have different opinions.The main reason for analyzing this situation is the different determination of the nature of PPP contract,In addition,there are deviations in the understanding of judicial interpretation.Therefore,in order to change this practical dilemma,we should take the nature of PPP contract as the research center,and make a systematic analysis of the theoretical purpose,existing theories and the necessity of identifying the nature of PPP contract.After combing the three existing theories on the nature of PPP contract,it can be found that whether it is a single civil contract,administrative contract or compromise mixed contract,it can not correctly characterize PPP contract,and the nature of PPP contract can guide the way of dispute resolution and affect the result of dispute resolution.Therefore,it is necessary to re identify the nature of PPP contract in theory.Judging from the identification path of the nature of PPP contract in existing laws and regulations,there are problems of lack of high-level law and conflict of norms.In particular,the publication of judicial interpretation can not achieve legal unity,and other documents conflict with it after its promulgation,and there are differences in understanding of the provisions of judicial interpretation.After identification,it is found that judicial interpretation essentially classifies PPP contract into the scope of administrative agreement without distinction,This provision has the problems of low recognition of social capital and imperfect supporting mechanism.Therefore,the identification of the nature of PPP contract in the current law needs to be improved and improved.Therefore,to solve the problem of determining the nature of PPP contract,the most fundamental thing is to make a theoretical breakthrough.Through the analysis of the German two-stage theory,it can be found that this idea of phasing and distinguishing the nature has high applicability to the re identification of the nature of PPP contract in China.It can not only recognize the administrative and civil nature of PPP contract at the same time,but also give a clear standard for the confirmation of the nature,that is,recognize the special nature of PPP contract as an “administrative act + principle civil contract”,and separate the administrative factors at the same time.Under the reconstruction of this nature,the supporting measures of improving rules and unifying practice are put forward in order to solve the legal and practical problems caused by the disputes over the nature of PPP contract.