The choice of the judicial path for the settlement of PPP contract disputes has become a hot issue in the current legislative and judicial practice. After combing the judgment of the previous judicial cases, it is found that the settlement of PPP contract disputes has two distinct paths in the legislative and judicial practice: one is solved by the administrative action through administrative litigation, and the other is solved by the civil action through civil litigation. Different judiciary paths cause judges and PPP participants to be confused because of the confusion of judicial practice, which will eventually affect the extensive implementation of the PPP mode. The dilemma of the judicial path for the settlement of PPP contract disputes is mainly from two reasons: on the one hand, the dispute of PPP contract attribute and the dualism of public and private, that is, under the dualism of public and private, the PPP contract is either a public law contract or a private law contract; on the other hand, the court’s public and private dual structure and the procedural law system, that is, the PPP dispute is either included in the administrative jurisdiction, or incorporated into the civil jurisdiction. The existing path of the settlement of PPP contract disputes causes the dilemma of litigant status between the parties, that is, it is difficult to allocate " positional goods” and it is difficult to restrain " status quo bias” behavior tendency. At the same time, the existing path also leads to the dilemma of public interests protection, that is, the individual litigation will lead to the tragedy of common, and the aggregate litigation or public interest litigation will appear the tragedy of anticommon. The PPP contract has some common attributes of the public law contract and the private law contract, which is a typical public-private mixing contract. The settlement of PPP contract disputes has surpassed the single trial target under the administrative litigation or civil litigation. It also exceeds the interests of the parties. It needs to find the breakthrough point from the third law fields. Therefore, if we want to find out the " Ariadne’s thread” to solve the dilemma, it is necessary to break through the restriction of the court organization system and the litigation procedure system. The organization system of the court should make appropriate adjustment to establish a special court for the settlement of disputes of the third law fields—the economic court. Disputes involving the third law fields, including PPP contract disputes, should be incorporated into the jurisdiction of the court. The litigation procedure of the economic court should draw on the experience and integrate the procedural rules of the administrative procedural law and the civil procedure law, and form a unique litigation procedure system. When PPP contract disputes are incorporated into the jurisdiction of the economic court, they can desalinate the priority of public interests or the priority of private interests, which will help to break through the disputes of administrative litigation and civil litigation, and relieve the dilemma of the litigants’ litigation status and the dilemma of public interests protection. According to PPP contract disputes, the court should make some special procedural arrangement. On the one hand, the court can add consumer organizations on behalf of the public product users to participate in the proceedings as the third people under a particular situation. On the other hand, the court has the authority to issue a payment order for the PPP contract responsibility to compensate the loss of many users.
The Judicial Path to the Settlement of PPP Contract Disputes
Journal of Shanghai University of Finance and Economics Vol. 20, Issue 05, pp. 17 - 29 (2018) DOI:10.16538/j.cnki.jsufe.2018.05.002
Cite this article
Fu Daxue. The Judicial Path to the Settlement of PPP Contract Disputes[J]. Journal of Shanghai University of Finance and Economics, 2018, 20(5): 17-29.
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