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Third, the importance of the nature of the BOT agreement identified

The reason why we need to discuss the nature of the BOT agreement, the main reason is that the different nature of the agreement, on both sides of the main body in the claim of rights has a greater impact. On the whole, such as being recognized as an administrative agreement, the administrative agreement, the government party due to the status of higher than the administrative counterparts, enjoy the legal administrative advantages, the subsequent performance of the contract will have a stronger position, especially for the unilateral termination of the contract, and the standard of administrative compensation is usually lower than the standard of civil damages; if the nature of the civil and commercial, the subsequent performance of the contract between the two sides of the status of the contract is more equal, the rights and obligations of the contract If the civil and commercial nature, then in the subsequent performance of the contract, the status of both parties are more equal, the contractual rights and obligations of the confirmation of the more inclined to the autonomy of meaning, in the other party's breach of contract or may claim a higher standard of compensation.

Regarding the right to administrative advantages, the definition and impact can be learned from relevant judicial precedents, regulations, and academic articles:

[(2017) Supreme Court Xing Shen No. 3564], "Although the administrative agreement, like the administrative act made unilaterally by the administrative organ, is for the purpose of realizing the public interest or the administrative management goal, it is different from the unilateral administrative act in that it is a two-party act The administrative agreement is an agreement between the administrative organ and the administrative relative to set up, change or destroy some kind of rights and obligations in the administrative law through equal consultation. The administrative agreement both retains the attributes of the administrative act, but also the use of the contract, decided by this double mixed features, on the one hand, the administrative organs should be with the agreement with the other party to enter into an agreement on an equal footing; Once the agreement is entered into, both parties shall perform their respective obligations in accordance with the agreement; When a dispute arises, but also according to the agreement in the first place in the framework of the “contract law” to claim the right. On the other hand, “negotiated” does not mean that the administrative relative and the administrative organ is a completely equal legal relationship. Although the law allows administrative organs to conclude agreements with administrative counterparts, they should still adhere to the administration of the law, and cannot expand the legal space of activities by means of administrative agreements. The law also allows the administrative organ to enjoy certain administrative advantages, when the continued performance of the agreement will affect the public interest or the realization of the administrative management objectives, the administrative organ can unilaterally change, terminate the administrative agreement, without having to go through the two sides of the meaning of the agreement."

“Especially critical is that the right to administrative advantage is a unilateral disposition made by the administrative organ outside the framework of the Contract Law, that is to say, the administrative agreement could have been continued in accordance with the agreement, and it is only for public interest considerations that it is artificially altered or terminated.”

Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Cases Involving Administrative Agreements, Article 16, Paragraph 1: "In the course of the fulfillment of an administrative agreement, situations that may cause serious damage to the national interest or the public interest of society may arise, and after the defendant has made an administrative act to change or dissolve the agreement, the plaintiff requests that it be revoked, and the people's court, after hearing the case, finds that the act is lawful, and the decision is to dismiss the plaintiff's litigation request; if it causes losses to the plaintiff, the defendant is adjudged to compensate for them."

Article 21: “Where the defendant or other administrative organ exercises administrative powers and functions in accordance with the law due to the needs of the national interest or the public interest of society, resulting in the plaintiff being unable to perform, having the costs of performance significantly increased, or having suffered losses, and the plaintiff requests that the defendant be ordered to pay compensation, the people's court shall support the request.”

Article 24: "Where a citizen, legal person or other organization fails to perform its obligations in accordance with an administrative agreement and fails to do so after a reminder, the administrative organ may make a written decision requiring it to perform the agreement. If the citizen, legal person or other organization does not apply for administrative reconsideration or file an administrative lawsuit within the statutory period after receiving the written decision, and still fails to perform, and the content of the agreement is enforceable, the administrative organ may apply to the people's court for compulsory execution.　　

Laws and administrative regulations stipulate that the administrative organ has the authority to supervise the performance of an administrative agreement, and where a citizen, legal person or other organization fails to perform its obligations in accordance with the agreement and fails to do so after a reminder, the administrative organ may, in accordance with the law, make a decision on the handling of the matter. If the citizen, legal person or other organization does not apply for administrative reconsideration or bring an administrative action within the statutory period after receiving such a processing decision, and still fails to perform, and the content of the agreement is enforceable, the administrative organ may apply to the people's court for compulsory implementation."

[Jurisprudence ∣ Hu Jianmiao: Reinterpretation of the Administrative Organ's Advantageous Rights in Administrative Agreements, Expert Workshop of the Central Party School (National School of Administration)], “With regard to the scope of the power performance of the administrative advantageous rights, ...... is more widely recognized and concentrated on six powers, that is, the administrative organ as a party has supervisory power, sanctioning power, and compulsory power over another party (citizen, legal person or other organization); or, in order to ”realize the public interests or administrative goals" needs, it can unilaterally change or cancel the contract. As one of the parties, the administrative organ has the right to supervise, sanction, and force the other party (citizen, legal person or other organization); or, in order to “realize the public interest or administrative goal”, it can unilaterally change or cancel the contract, and can recover the contract subject matter in advance and so on."

Normally, within the framework of the Civil Code/Contract Law, the unilateral termination of a contract is subject to statutory or agreed conditions, and the conditions for such termination are clear, such as fundamental breach of contract by one of the parties, failure to realize the purpose of the contract, etc.; both parties are equal in the application of the conditions of termination, and if one party requests unilateral termination of the contract, the other party may or may not agree to the termination (in the case where the other party does not have the right to terminate the contract unilaterally). If the other party does not have the right to terminate the contract unilaterally, the other party can either agree or disagree (in case the other party does not have the right to terminate unilaterally). If the unilateral act of rescission does not comply with the statutory or agreed conditions, the rescission may not take effect, and the other party does not have to go through the judicial procedure to negate the effect of the unilateral act of rescission. If the other party suffers damages as a result of the termination of the contract, the other party may claim damages.

However, within the framework of the administrative agreement, the status of the government party is not equal to that of the other party, and it enjoys more unilateral rights and interests, especially in the case of “public interest or administrative objectives are realized”, the most common is that the government party unilaterally changes or cancels the contract, and withdraws the subject matter of the contract in advance. Although the government's right to administrative advantages should be limited, in the complex practical situation, what is “public interest” and “administrative goal realization” is vaguely defined, and often the government “speaks for itself”. "After the government has made a unilateral act, the other party can only object to it through administrative review or litigation (the outcome of which is uncertain and has a long period of time, and the operation may have been greatly affected), or else it may lead to the government's unilateral act taking effect. Moreover, if the government's unilateral act belongs to the exercise of administrative functions, the resulting loss is given to “compensation”, not ‘compensation’, the standard of compensation is not clear, generally defined in terms of direct loss, the scope of which is generally smaller than the “compensation”. Compensation". In cases prosecuted on a civil or commercial basis, the government will usually argue that the agreement and the case are administrative in nature, in addition to procedural defenses, but also in order to fight for a greater right to speak.

Therefore, if the BOT agreement is recognized as an administrative agreement, the subsequent performance process may face the situation that the government certainly enjoys the administrative superiority, i.e., the government enjoys greater power over the performance, modification and termination of the contract outside the Civil Code/Contract Law, and has more room for unilateral acts. From this perspective, for the enterprise side, if the BOT agreement is recognized as an administrative agreement, the risk to the security of future contract performance is greater; for the government side, it will have a higher contractual status.

After the dispute, the nature of the agreement often affects the choice of procedures. Taking the county government as an example, the advantages and disadvantages of the choice of administrative or civil procedures are as follows:

The advantages of administrative litigation are: the case fee (usually charged per piece) is lower than that of civil litigation (billed according to the subject matter of the lawsuit), and the jurisdiction of the intermediate court is not necessary to consider the amount of litigation; the disadvantages are: the government side of the administrative disputes/administrative agreements represents the authority of the public, the subject matter of the status is higher than that of the administrative counterparty, and it enjoys statutory administrative advantages, and the follow-up of administrative disputes/administrative agreements is more important than that of administrative agreements. The disadvantages are: in administrative disputes/administrative agreements, the government party represents the public authority and has a higher subjective status than the administrative counterparty, and enjoys the legal right of administrative superiority, which will give it a stronger position in the subsequent fulfillment of the contract (in particular, the right of unilateral termination of the contract).

Advantages of civil litigation: both parties in the civil dispute/civil and commercial agreement are equal civil and commercial subjects in the sense of civil law, so that both parties are in a more equal position in the subsequent performance of the contract, and the confirmation of the contractual rights and obligations is more inclined to the autonomy of the meaning of the contract; Disadvantages: if the subject matter of the lawsuit is larger, the case will be charged higher fees, and the court of first instance may be in the basic court (to reach a certain amount of the subject matter of the court of intermediate level).

In summary, combined with the relevant judicial practice, BOT projects, if a dispute arises, the nature of the agreement is still controversial space, for the litigation procedure is still optional space. The parties should combine the actual situation of their own projects, comprehensively analyze the advantages, disadvantages and risks of different procedures, and choose the most suitable procedure for themselves in order to maximize the protection of their legitimate rights and interests.