PPP模式中公私权益经济法调整研究

发布时间：2018-08-16 14:27

【摘要】：PPP是Public-Private Partnership的英文缩写,中文译为“公共部门与私营部门的合作伙伴关系”。它以PPP协议约束公私双方的权利义务,在利益共享、风险共担基础上形成合作关系,旨在为公众更好地提供公共服务。目前,由于PPP法律制度层级较低,不同规范之间存在重复和矛盾之处,公共部门与私营部门在订立PPP协议时权利义务分配不明确,公共部门权力界限不清等原因,导致PPP模式在我国的应用中产生诸多问题,如公共部门与私营部门的权益冲突问题,PPP协议性质问题,风险分担问题等,其中,公共部门与私营部门的权益冲突问题是影响公私合作法律关系的核心问题。公私双方之间的权益冲突轻则影响具体项目合作中公私双方权利义务配置,不利于公私双方的良性合作,严重时影响公共物品的稳定提供,损害公共利益。因此对PPP模式中公共部门与私营部门之间的权益冲突进行有效协调至关重要。本文通过运用实证研究法、比较分析法和文献研究法,对如何调整公私权益冲突进行研究。通过梳理公共部门与私营部门权利义务配置现状,得出公私双方权益冲突的表现及原因。由于权利义务配置不平等,公私双方根本目标不一致以及在PPP模式中公共部门承担多重角色等原因,导致公私双方产生社会公共利益最大化与私人资本利益最大化之间的冲突,公权力与私权利之间的冲突,公共利益与垄断利益之间的冲突等。英国、加拿大等国家PPP模式的运用发展较为成熟,通过分析英国、加拿大、台湾地区关于PPP模式中公私权益调整的有效做法,结合我国实际情况,得出一些可借鉴的措施,包括完善法律法规体系,确定专门的主管机关及明确其职权等。这些措施将为协调PPP模式中公私双方的权益冲突提供理论指导。明确PPP协议的法律属性,将为协调公私双方的权益冲突提供理论出发点。本文以PPP协议是具有经济法属性的合同为基点,以经济法理念调整公私双方的权益冲突,即确立以公共利益的保护为核心、兼顾私人权益的协调理念,通过具体措施做到既保障公共利益的实现,又使私营部门的合法权益得到尊重与保护,合理配置公私双方的权利义务,从而保证PPP模式的稳定发展。将经济法理念应用于PPP模式中,协调公共部门与私营部门之间权益冲突,体现了经济法对公私合作各方不同价值目标的包容和尊重,实现了社会公共利益最优化的整体目标与私人资本最大化的个体目标的统一,有助于PPP模式的法学理论的完善。
[Abstract]:PPP is an acronym for Public-Private Partnership. It binds the rights and obligations of both public and private parties by PPP agreement and forms a cooperative relationship on the basis of benefit-sharing and risk-sharing in order to provide better public services for the public. At present, due to the low level of PPP legal system, duplication and contradiction among different norms, the distribution of rights and obligations between the public sector and the private sector in concluding the PPP agreement is not clear, and the limits of the power of the public sector are not clear. It leads to many problems in the application of PPP model in our country, such as the conflict of rights and interests between the public and private sectors, the nature of PPP agreement, the problem of risk sharing and so on. The conflict of rights and interests between the public and private sectors is the core issue affecting the legal relationship between the public and private sectors. The light conflict of rights and interests between public and private affects the allocation of rights and obligations of both public and private parties in specific project cooperation, which is not conducive to the benign cooperation between public and private parties, and seriously affects the stable supply of public goods and damages the public interests. Therefore, it is very important to coordinate the conflicts between public and private sectors in PPP mode. This paper studies how to adjust the conflict between public and private interests by means of empirical research, comparative analysis and literature research. Through combing the present situation of the allocation of rights and obligations between the public sector and the private sector, this paper concludes the manifestation and causes of the conflict between public and private interests. Due to the unequal allocation of rights and obligations, the inconsistency of the fundamental goals of both public and private parties and the multiple roles of the public sector in the PPP model, there is a conflict between the maximization of social public interests and the maximization of the interests of private capital. The conflict between public power and private right, the conflict between public interest and monopoly interest, etc. The application and development of PPP model in Britain, Canada and other countries are relatively mature. By analyzing the effective methods of adjusting the public and private rights and interests in the PPP model in the UK, Canada and Taiwan, and combining the actual situation of our country, we can draw some measures that can be used for reference. Including perfecting the system of laws and regulations, defining special competent authorities and clarifying their functions and powers. These measures will provide theoretical guidance for coordinating the conflict of interests between public and private parties in the PPP model. Clarifying the legal attribute of PPP agreement will provide a theoretical starting point for coordinating the conflict of rights and interests between public and private parties. Based on the fact that the PPP agreement is a contract with the attribute of economic law, this paper adjusts the conflict of rights and interests between public and private parties with the idea of economic law, that is, to establish the coordination idea of taking the protection of public interest as the core and taking account of private rights and interests. Through concrete measures, we can not only guarantee the realization of public interests, but also respect and protect the legitimate rights and interests of the private sector, and reasonably allocate the rights and obligations of both public and private parties, so as to ensure the stable development of the PPP model. The concept of economic law is applied to the PPP model to coordinate the conflict of rights and interests between the public sector and the private sector, which embodies the tolerance and respect of the different value objectives of the public and private parties. It realizes the unity of the overall goal of the optimization of social public interest and the individual goal of maximizing the private capital, which is helpful to the perfection of the legal theory of the PPP model.
【学位授予单位】：山西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.29

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