A Comparative Analysis of Contractual Properties of Private Participation Infrastructure Projects ---Empirical Analysis of Taiwan Courts' Decisions in Public-Private Partnership
|關鍵字:||促參法;民間參與;公私協力;投資契約;Promotion of Private Participation;ublic-Private Partnership;Contractual Properties|
Laws for promotion of private participation in infrastructure projects was set up in 1990.Its purpose is promote quality of public service and economic development, and purpose development of the private participate in infrastructure projects. laws for promotion of private participation in infrastructure projects had be bring into practice and there are many cases about that, and quote the 55rd of laws for promotion of private participation in infrastructure projects let the cases that are the govern accord to the rules to solicit private participate in infrastructure projects also conform with laws for promotion of private participation in infrastructure projects before the laws for promotion of private participation in infrastructure projects were bring into practice by the court, that make laws for promotion of private participation in infrastructure projects became the basic law for the rights and duties between government and private, it also had effects to the cases executed before laws for promotion of private participation in infrastructure projects promulgated. Infrastructure usually have monopolistic property, After industrial revolution, for avoid syndicates monopolize Infrastructure make the folk can not resist them, invest Infrastructure by government to protect benefit of public. But in the process of high degree democracy, the direct democracy make the people participate in politics participate in politics expand Infrastructure and reduce taxes, did not make a faultless estimation, lead the government’s to bear too much finance burden. People censure the low efficiency of the public undertakings or publicly-operated undertakings because of they are under the protect from government for a long time .As that, run the public undertakings by the private and government enter into partnership with private became a new aspect ,departments of government need not to be the only one of public service provider under ‘governance’. The basic object of government enter into partnership with private is reciprocation, efficiency and share the risks , the point of view about ‘top-down’ in the past should be adjust ,and government could not to play the role of executants, but the duty on guidance and choose public service is get more weight. How to choose the investor carefully from privates, and how to get the maximum public benefit between the investors is the new manage point, the estimate and procedure are under control from government, in laws for promotion of private participation in infrastructure projects, it take the evaluative process in the first phase to be the rule, most of scholars think its decisions from evaluation is have effect for administrative disposition. In second phase, the property of contract is civil or administrative contractual bring many kinds argument, and that also affect the efficacy and judiciary relief even the roles in the execute process. Scholar defined the efects of Invest contracts to promotion of private participation in infrastructure projects “King”, it is the starting point that set rules about rights and duties for government to private and private to private contractual. Someone said that civic rights usually intervene in cases of PPP and the government should intervene in them. so that can retain state power to control contracts; Someone said that cases of PPP involve great fund and long time for operation is the other feature, if adjust them casually would bring more bad effects to stable property and risks of judicature and violate the basic objects of partnership between government and private, which one is right and which one is wrong. This research try to find the decisions and effects to properties of contracts from the cases, and compare with theories and operate ways of other countries, hope not discuss the properties of contracts by law point only, and recommend attitudes hope that could have benefits for operation of PPP cases and avoid violating state power by freedom of contract.
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