摘要
PPP协议争议解决,司法逻辑起点落脚于PPP协议法律属性。在公私法融合治理视角下,PPP协议本质上系民事法律关系与行政法律关系互相交错、民事权利义务与行政权利义务难以完全分离的混合合同。PPP协议与特许经营协议并不等同,通过仲裁解决相关争议仍具现行法律基础。若PPP协议争议非因政府行使行政优益权等行政行为引发,或者争议内容属于财产权益等纯粹民事权利义务,则可以纳入仲裁受理范围。PPP协议争议诉讼亦应按争议内容分流,行政一并解决相关民事争议诉讼程序可适用于混合型PPP协议争议案件的审理。
The judicial logic starting point of PPP agreements dispute resolution is the legal attributes of PPP agreement. From the perspective of integrated governance of public and private law, PPP agreements are essentially hybrid contracts in which civil legal relations and administrative legal relations are intertwined, and civil rights and obligations and administrative rights and obligations are difficult to completely separate. PPP agreements are not equivalent to franchise agreements, and there is still an existing legal basis for resolving related disputes through arbitration. If the dispute over the PPP agreements is not caused by an administrative act such as the government’s exercise of administrative preferential rights, or if the content of the dispute belongs to pure civil rights and obligations such as property rights and interests, it may be included in the scope of arbitration acceptance. PPP agreements dispute litigation could also be divided according to the contents of the dispute, and the administrative joint resolution of relevant civil dispute litigation procedures can be applied to the trial of hybrid PPP agreements dispute cases.
出处
《北方法学》
CSSCI
北大核心
2022年第1期104-116,共13页
Northern Legal Science
关键词
PPP协议
争议解决
公私法融合
混合合同
PPP agreement
dispute resolution
public-private law fusion
hybrid contract
