PPP合同弹性调整机制研究  

A Research on the Elastic Adjustment Mechanism of the PPP Contract

作　　者：陈婉玲[1] Chen Wanling(Academy of Scientific Research,East China University of Political Science and Law,Shanghai 201620,China)

机构地区：[1]华东政法大学科学研究院,上海201620

出　　处：《上海财经大学学报（哲学社会科学版）》2018年第5期4-16,共13页Journal of Shanghai University of Finance and Economics

摘　　要：PPP即政府与社会资本建立的长期合作关系,PPP合同不是买卖关系而是一种合作的过程,其履行以"合作"为基础,以有效解决公共服务供给问题为导向。PPP项目运行中,来自社会、政治、经济环境的不可抗力等因素将突破PPP合同风险预测,导致合同订立基础丧失、合同利益失衡,引发合作僵局或者困境。必须树立PPP合同柔性管理思维,建立有效的合同弹性调整机制,明确合同可变更条款及其实现路径,保证PPP项目运行中各方的持续沟通和合同内容的适时调整,才能释放风险,化解僵局,实现政府与社会资本合作的目标。在PPP长期合同履行过程中,并非所有的不确定风险和情势变更都可以进行合同调整和再协商,必须在契约体系框架内,规定启动PPP合同调整的情形。PPP is a long-term cooperative relationship between the government and social capital. The PPP contract is not a business relationship but a kind of cooperation. The implementation of the PPP project is based on ＂cooperation＂ and its problem-oriented is regarded as the effective solution of the public service supply. During the operation of the PPP project,the uncertain factors will break through the risk prediction of the PPP contract,which will lead to the loss of the foundation of contract conclusions,the imbalance of contract interests,and the deadlock of cooperation or the incompleteness of the PPP contract. Moreover,the information that can be obtained by both parties is limited and the risk is inexhaustible. The traditional contract system is based on the functional purpose of resolving disputes,paying attention to the rigor and strictness of the contract design,emphasizing on the measures of checks and balances,and paying attention to the division of all aspects including responsibilities and rights,lack of cooperation atmosphere flexibility. The logical starting point of the PPP model is＂cooperation＂ rather than ＂confrontation＂. The problems arising in the performance of the contract must be resolved in a more flexible manner,rather than focusing directly on the sharing of liability for termination of the contract and damages for breach of the contract. It is necessary to set up flexible management thinking of the PPP contract,establishing effective flexible adjustment mechanisms of the contract,forcing the PPP contract to be embedded by legislation,including flexible concession period,flexible price adjustment,flexible income distribution and stock right change,etc. The parties are needed to provide a path for renegotiation,allowing both parties to change the content of the contract through negotiation. In response to the challenge of contractual uncertainty and resulting problems,the path to the implementation of the variable clause of the PPP contract should include defining the trigger co

关 键 词：PPP合同 调整机制 弹性条款 再谈判 

分 类 号：DF411[政治法律—经济法学]