摘要
PPP协议纠纷是适用行政诉讼还是民事诉讼,无论是理论界还是实务界,一直没有定论。最高法院出台的《行政协议解释》亦未完全平息纠纷,反而带来了与其他规范间的抵牾。从历史的维度观察,我国PPP从政府特许经营中孕育而生,并成为涵盖特许经营、政府购买服务等其他模式的上位概念。实证视角的考察发现,PPP协议与政府特许经营协议名称的差异也在一定程度上影响了法官对诉讼程序选择的判断;且PPP协议纠纷选择诉讼程序存在三种裁判逻辑:合同性质决定说、双方当事人默认说和争议法律关系决定说。但前两种观点逻辑及功能弊端明显,应对第三种裁判思路进行修正。具体而言,应当破除合同名称的偏见,将PPP协议的法律性质界定为民行混合合同;再以“行政权的运用”为核心,对具体争议问题中的行政法律关系进行剥离,以此构建PPP协议诉讼解决机制的应然之道。
Whether PPP agreement disputes are applicable to administrative litigation or civil litigation,there has been no conclusion in both theoretical and practical circles.The Interpretation of Administrative Agreement issued by the Supreme Court has not completely settled the disputes,but has brought conflicts with other norms.From the perspective of history,China's PPP was born from government franchising,and became a superior concept covering franchising,government purchasing services and other modes.From an empirical perspective,it is found that the difference between the name of PPP agreement and government franchise agreement also affects the judge's judgment on the choice of litigation procedure to a certain extent;In addition,there are three kinds of judgment logics in the litigation procedure of PPP agreement dispute selection:the theory of contract nature determination,the theory of default by both parties and the theory of dispute legal relationship determination.However,the logic and function of the first two viewpoints have obvious disadvantages,so the third way of judging should be revised.Specifically,we should get rid of the prejudice of the contract name and define the legal nature of PPP agreement as a mixed contract between the people and the bank;Then,taking"the use of administrative power"as the core,the administrative legal relations in specific disputes are stripped off,so as to construct the proper way of litigation settlement mechanism of PPP agreement.
出处
《南海法学》
2021年第4期68-79,共12页
The South China Sea Law Journal
关键词
PPP协议
政府特许经营协议
诉讼机制
《行政协议解释》
行政权
PPP protocol
Government franchise agreement
Litigation mechanism
Interpretation of administrative agreement
Executive power
