Typical PPP Project Cases: Controversy Focus, Referee Rules and Comments

Typical PPP Project Cases: Controversy Focus, Referee Rules and Comments

PPP mode is more suitable for garbage disposal with strong public welfare or some public welfare, such as hazardous waste disposal and domestic garbage incineration and landfill disposal. What do you know about the focus of the dispute, the judging rules, and the PPP project cases being commented?

Case 1. Hainan PetroChina Kunlun Hua Gang Gas Co., Ltd. v. Danzhou Municipal People's Government.

The theme is about the establishment of franchise.

Case Index Court of First Instance: Second Intermediate People's Court of Hainan Province; Court of second instance: Hainan Higher People's Court, case number: (20 12) Qiong Zhong Xing Zi No.4.

The focus of the dispute is not the competitive procurement procedure. Can government departments grant franchise rights to urban pipeline gas?

Background Danzhou Municipal Government granted Danzhou Branch of Hua Gang Gas Company the franchise of pipeline gas within Danzhou administrative division by issuing a series of administrative replies and signing Danzhou Pipeline Gas Project Development Agreement.

Since then, Danzhou Municipal Government has agreed to authorize Danzhou Binhai New Area Management Committee to sign the Agreement on Investing in the Construction of Danzhou Binhai New Area Gas Pipeline Network Gas Supply Project with another company.

Hua Gang Gas Company and Danzhou Branch of Hua Gang Gas Company believe that the above-mentioned administrative licensing behavior of Danzhou Municipal Government violated their franchise rights, so they filed a lawsuit to request the Danzhou Municipal Government to revoke the administrative license of another company.

Opinions of the Higher People's Court of Hainan Province:

1) According to the Administrative Licensing Law of People's Republic of China (PRC) and the Administrative Measures for Franchising of Municipal Public Utilities of the former Ministry of Construction, the pipeline gas franchise involved in this case shall be licensed through market competition mechanisms such as bidding according to law.

2) The main evidences provided by Hainan PetroChina Kunlun Hua Gang Gas Co., Ltd., namely "Reply on the Development and Construction of Danzhou Pipeline Gas Project" (Danfuhan [2003] No.72) and "Agreement on the Development of Danzhou Pipeline Gas Project" are not enough to prove that it has been authorized by Danzhou Municipal Government to operate Danzhou and Binhai New Area pipeline gas projects according to law.

3) There is no factual and legal basis for Hainan PetroChina Kunlun Hua Gang Gas Co., Ltd. to claim that it has the franchise of pipeline gas within the administrative area of Danzhou City. In practice, it is not uncommon for government departments to directly grant public utilities franchise to the private sector through administrative examination and approval without competitive procurement procedures. It is also a common proposition in franchise disputes to deny the franchise of the private sector on the grounds that there are defects in the establishment procedure. For the procedural defects in the establishment of franchise, the tolerance of each court is not consistent.

The Hainan Provincial High Court applied the most stringent review standard in the above cases. Without competitive procurement procedures, administrative examination and approval and franchise agreement cannot constitute the legal basis for the effective establishment of franchise.

Although the review standards of many courts are relatively relaxed, they still recognize the effective establishment of franchise rights and do not need competitive procurement procedures such as bidding. However, in order to prevent accidents, efforts should be made to avoid procedural defects in the process of establishing franchising.

Case 2. Contract dispute between Henan Xinling Highway Construction Investment Co., Ltd. and huixian city Municipal People's Government.

The theme is about the nature of franchise agreements.

Case index Court of first instance: Henan Higher People's Court, case number: (20 15) Yu Famin-Zi ChuNo.1-1; Court of second instance: the Supreme People's Court, case number: (20 15) Minyizhongzi No.244.

Is the Controversy Focus "Agreement on Investment and Operation of Highway Project from Shangbali in Huixian County to Shanxi Province" a civil contract or an administrative contract?

Fact Background After the court of first instance accepted the case of Xinling Company v. huixian city Municipal Government, the huixian city Municipal Government raised a jurisdictional objection, arguing that the Investment and Operation Agreement of Shangbali in Huixian County to expressway in Shanxi Province was a government franchise agreement with BOT mode. Xinling Company's request for repurchase and compensation to the court of first instance is based on this contract, which is an administrative contract rather than a civil contract. The huixian city Municipal Government requested the court of first instance to transfer the case to Xinxiang Intermediate People's Court.

Court opinion: Henan Higher People's Court: The Agreement on Investment and Operation of Highway Project from Shangbali in Huixian County to the provincial boundary of Shanxi Province stipulates that the financing, income, liability of both parties and liability for breach of contract of the highway construction involved in this case are the rights and obligations of both parties as equal civil subjects. Xinling Company filed a lawsuit for the performance of the contract, and the court, as a civil case, did not violate the law.

The Supreme People's Court:

1) Although one party to the contract is the huixian city Municipal Government, Xinling Company, the counterpart of the contract, still enjoys full autonomy of will in concluding the contract and determining the contents of the contract, and is not forced by unilateral administrative actions. The contents of the contract include specific rights and obligations and liability for breach of contract, which all reflect the consensus of equality and reciprocity between the two parties.

2) The contract in this case is not only about administrative examination and approval or administrative license itself, but other contents involved in the contract, such as administrative examination and approval and administrative license, are all part of the contract, and the nature of the contract involved cannot be determined.

3) From the aspects of the purpose, responsibility, subject, behavior and content of the contract in this case, the contract has obvious nature of civil and commercial legal relationship and should be characterized as a civil and commercial contract.

Case 3. Hotan Municipal People's Government v. Hotan Tianrui Gas Co., Ltd. and Xinjiang Xingyuan Construction Group Co., Ltd.

The theme is about the nature of franchise agreements.

Case index of the court of first instance: Higher People's Court of Xinjiang Uygur Autonomous Region, case number: (2009) Xinmin ErchuziNo. 1; Court of second instance: the Supreme People's Court, case number: (20 14) Min Zhong Er ZiNo. 12.

Is the contract of Hotan natural gas utilization project a civil contract or an administrative contract?

Fact Background On April 65438+April 2004, Hotan Municipal Government and Xingyuan Company signed the Hotan Natural Gas Utilization Contract for investment and construction of Hotan Natural Gas Utilization Project. On September 2, 2008, 12, Hotan municipal government issued a notice of dissolution to Xingyuan Company and Tianrui Company, and decided to dissolve the contract of Hotan natural gas utilization project.

Hotan Municipal Government believes that the Hotan Natural Gas Utilization Project Contract and its supplementary contract signed by both parties are not simple contracts between equal subjects to dispose of their civil rights and obligations, but are signed by Hotan Municipal Government as an administrative organ to perform social public affairs management functions. This contract is a franchise contract with certain administrative attributes.

Opinions of the Higher People's Court of Xinjiang Uygur Autonomous Region:

1) After the dispute occurred between the two parties, Hotan Municipal Government informed Xingyuan Company and Hotan Rui Company to terminate the contract according to the provisions of the Contract Law, and there was no corresponding administrative decision to revoke its franchise. With the consent of Hotan Municipal Government, Hotan Construction Bureau made the Decision on Taking Over the Right to Manage the Natural Gas Supply of Hotan Tian Rui Company, and applied to Hotan People's Court for pre-litigation property preservation. The measures taken by Hotan municipal government to this dispute show that it does not regard this contract as an administrative contract.

2) Both parties filed a civil lawsuit on the dispute in this case, and there is nothing wrong with this case being tried as a civil case.

The Supreme People's Court:

1) The Hotan Natural Gas Utilization Project Contract and its supplementary contract involved in this case were signed by Hotan Municipal Government as a party according to the public authority of its administrative organ, which reflected its behavior of franchising the use of natural gas and exercising its administrative authority in accordance with relevant municipal public utilities management regulations.

2) Although the contents of the contract involved stipulate the rights and obligations of both parties, which to some extent reflects the characteristics of consensus between the two parties, the granting of franchise, the limitation of business content, scope and duration, the determination of price and charging standards, the ownership and disposal of facilities, and the government's supervision of the project all reflect the special position of the government in signing the contract.

3) Although there are some civil factors in the legal relationship between the contract and litigants involved in this case, the two parties are not civil legal relationships formed between equal subjects, so this case is not within the scope of the people's court, and the parties may file another administrative lawsuit according to relevant administrative regulations.

An 20 14 adopted the opinion that when the Administrative Procedure Law was revised, the government franchise agreement was formally included in the scope of administrative agreement. It can be predicted that most franchise disputes will face the question of whether the project agreement is a civil contract or an administrative contract.

In the above two franchise cases, which were finalized by the Supreme Court, the attitude of the judges was completely opposite. The trial judge of the first case paid more attention to the civil factors of the project agreement, while the trial judge of the second case paid more attention to the administrative factors of the project agreement. These two cases also show that the judicial community has not yet formed a * * * understanding, and how to define it depends largely on the specific discretion of the court.

Undoubtedly, there are both civil and administrative factors in the franchise agreement. It is an urgent problem to clarify whether the public sector and the private sector establish a civil legal relationship or an administrative legal relationship through franchise agreements. If it is not solved for a long time, it will not only cause a great waste of time, money and judicial resources, but also seriously affect the enthusiasm of social capital to participate in infrastructure investment.

Case 4. Shangqiu Xin 'ao Gas Co., Ltd. and Shangqiu Kunlun Gas Co., Ltd.

The theme is about the exclusive regional scope.

Case Index Court of First Instance: Shangqiu Intermediate People's Court of Henan Province; Court of second instance: Henan Higher People's Court, case number: (20 14) Yu Fa Min Zhong Yi ZiNo. 186; Retrial court: the Supreme People's Court, case number: (20 15) Shen min zi No.256.

In which specific area does Shangqiu Xinao Gas Co., Ltd. enjoy the exclusive right to operate?

Fact Background In 2007, authorized by Shangqiu Municipal Government, Shangqiu Municipal Public Utilities Administration signed an urban pipeline gas franchise agreement with Xinao Company. Article 3.3 of this agreement stipulates that the geographical scope of exercising the franchise right of this agreement is within the planning area of Shangqiu City. Annex III to this agreement is a schematic diagram of the scope of the franchise area.

Since 20 12, 1 1, Kunlun Company has continuously laid gas pipelines in Suiyang industrial cluster in Shangqiu City. Xinao Company brought a lawsuit to the court on the grounds that Kunlun Company's behavior violated its pipeline gas franchise, demanding that Kunlun Company stop the infringement and compensate for the losses.

Xinao Company did not submit it to the court during the litigation? Annex III Scope Map of Franchise Area? . Xinao Company believes that according to the Urban Master Plan of Shangqiu City (1993-20 10), the planned area of Shangqiu City is an administrative area including Shangqiu City, Shangqiu County and Zhuang Yuan, with a total area of 496.5 1 km2.

Kunlun Company believes that the planned area of Shangqiu City only refers to Shangqiu City under the overall urban planning of Shangqiu City (1993-20 10), with an area of 56 square kilometers. Kunlun Company did not lay a gas pipeline in Shangqiu City, and did not infringe upon the rights and interests of Xinao Company.

The Supreme People's Court court view:

1) The settlement of the dispute in this case cannot avoid the identification of Shangqiu city planning area, and the urban planning area should be identified by the administrative organ according to law.

2) Relevant departments in Shangqiu have different opinions on the scope of urban planning area: Shangqiu Urban Management Bureau thinks that the urban planning area is 496.55438+0 square kilometers; Shangqiu Urban and Rural Planning Bureau and the Legislative Affairs Office of the government believe that the planned area of the city is 56 square kilometers.

3) It is beyond the scope of the civil judgment of the people's court to directly determine that Xinao Company enjoys the franchise right of pipeline gas when the administrative organ has not demarcated the urban planning area of Shangqiu City.

Comments are safe, although there are still some public departments that will. Franchising? Interpreted as? Professional management, right? The court will basically support the franchisee to enjoy the exclusive right to operate in the franchise area. The specific regional scope of franchisee's exclusive right to operate has become one of the main controversial issues.

In recent years, with the expansion of the city, the value of all kinds of suburbs and new districts has risen. In this context, there are more and more disputes about determining the scope of franchise areas. The attitude of the Supreme Court in the above cases is very clear. The scope of a planned urban area shall be determined by the competent administrative department. If there is no clear consensus among the administrative departments, the court will not define it.

Under the above circumstances, Annex III of the franchise agreement? Franchise area scope map? This is the most powerful and direct evidence, but Xinao Company has never submitted it to the court. Maybe Xinao Company didn't keep it well, or didn't actually make Annex III when signing the contract. This case not only proves that details are the devil, but also shows that in the implementation of PPP projects, it must be clear and meticulous.

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