作者：孙彦
所谓PPP 模式即公私合营模式(public-private partnership)，是指政府与私人组织之间以特许权协议为基础而形成的一种伙伴式合作关系，旨在提供某种公共物品和服务。合作各方通过签署合同来明确各自的权利和义务，以确保合作的顺利完成，最终达到比单独行动更为有利的结果。
特许权协议争议特许权协议是PPP 模式的基础，对于规范政府和私人组织之间的权利义务至关重要。由于特许经营合同标的涉及到公共产品和服务，因此该协议不仅涉及政府与私人组织，还涉及到社会公众。对于这样的合同，一旦发生争议，应该通过何种途径解决？
天元所代理新疆某市政府与新疆某公司之间关于天然气利用项目合同纠纷案件时，对于特许经营协议的争议解决进行了探索，并最终得到了最高人民法院的肯定。
2004 年4 月14 日，新疆某公司与新疆某市人民政府就天然气利用项目工程的投资建设签订《天然气利用项目合同》，约定该公司投资建设该市的天然气管道及调压门站等供气设施，项目正式投产后由该公司自主经营20 年，此后天然气项目工程所有权全部交与市政府；市政府取得对该工程所有权后如需对外承包或出租经营，在同等条件下，该公司有优先承包或租赁经营权。
合同签订后，该公司由于资金短缺问题，出现了项目建设缓慢，拖欠民工工资等诸多问题。项目投产后在运营过程中也存在诸多问题，例如供气过程中与用户发生矛盾、供暖停气导致大面积停暖，严重影响人民群众的正常生活。
在此情况下，市政府向该公司出具合同解除通知函，称：根据《市政公用事业管理办法》和《新疆维吾尔自治区市政公用事业特许经营条例》以及《城市燃气管理办法》等规定，市政府决定依法解除与该公司所签订的《天然气利用项目合同》。此后市建设局根据该公司的申请，对政府作出的接管通知举行了听证会，并决定该公司经营的天然气供用气及运行业务的经营权由该局派人员进驻实行全面强制接管。
听证会后，该市人民法院根据市建设局的申请作出诉前财产保全民事裁定书，裁定对该公司售气系统及相关天然气用户资料予以查封。
随后市政府将该公司诉至法院，要求解除双方签订的《天然气利用项目合同》。此后不久，该公司又将市政府诉至新疆高院，要求继续履行合同。
纠纷定性天元所受市政府委托代理本案后，经过研究分析，我们发现无论是双方当事人还是一审法院，对于本案合同性质的定性均存在错误。
本案的当事人将《天然气利用项目合同》视为平等主体之间的民事合同，并按照民事诉讼程序提起财产保全和诉讼，法院也是按照联营合同的思路进行审理的。
  
于是我们立即向一审法院提出法律意见，主张本案诉争的《天然气利用项目合同》并非简单的平等主体之间处分其民事权利义务的合同，而是市政府作为行政机关、出于履行社会公共事务管理职能的需要而签订的。
  
该合同以市政府特许该公司经营天然气这一必要的法律事实为前提，是具有一定的行政属性的特许经营合同，而非联营合同纠纷。
  
因此，我们主张本案应该定性为行政合同纠纷，通过行政诉讼处理。但是一审法院并未采纳本所的意见，仍然按照民事合同处理并判决市政府解除合同行为无效。
最高院支持一审判决作出后，天元所继续代理市政府向最高人民法院提起上诉，继续主张“原审法院关于本案合同性质及法律关系的认定错误”。
最高人民法院经过审理，采纳了我们的意见，认为：“本案所涉合同以及当事人之间讼争的法律关系虽然存在一定民事因素，但双方并非平等主体之间所形成的民事法律关系，因此本案不属于人民法院民事案件受理范围，当事人可依据相关行政法规定另行提起行政诉讼。”
  
通过上述案件的处理可以看出，从合同标的、合同主体、合同目的以及合同内容等诸多方面进行考量，特许经营合同均不属于普通民事合同，而是政府为了社会公共利益和依法履行行政管理职能而对外签署的行政合同。因此，特许经营合同应当由归属于行政部门法的特别规定调整。

The public-private partnership (PPP) model refers to a cooperative partnership relationship between a government and a private entity based on a concession agreement in order to provide a certain public good or service. The parties clarify their rights and obligations in executing the contract so as to ensure smooth completion of the project–and ultimately achieve a more beneficial result than if they had acted separately.
Concession agreement disputesConcession agreements are the foundation of the PPP model and are instrumental to regulating the rights and obligations of the government and the private entity. As the target project involves a public product or service, the agreement pertains to the government, private entity and the public. If a dispute arises, the question is how to resolve it.
Tian Yuan previously acted as counsel for a Xinjiang municipal government in a dispute with a Xinjiang-based company over a natural gas utilization project contract. In the dispute, we looked into dispute resolution in relation to concession agreements. In the end, our efforts were endorsed by the Supreme People’s Court (SPC).
To give a background of the case, on 14 April 2004, a Xinjiangbased company executed a contract for a natural gas utilization project with a municipal government in Xinjiang. The contract concerned the investment and construction of a natural gas utilization project. It set out that the company would invest in supply facilities such as a natural gas pipeline and pressure regulating stations for the municipality and construct them in addition. Once the project officially commenced, the company would operate it at its own discretion for 20 years, following which ownership of the project would pass to the municipal government in its entirety. Once the municipal government secured ownership, if it needed to contract out or lease the operation to a third party, all things being equal, the company would have a priority right to contract or lease the operation.
After executing the contract, the company experienced a cash shortfall. This resulted in a slowdown in construction and failure to pay wages among other problems. There were also numerous operational problems, including conflicts with users over an interruption in the heating gas supply. The interruption affected a vast area and seriously influenced people’s daily lives.
Under this circumstance, the municipal government issued the company a contract termination notice. The notice set out that the municipal government had determined to terminate the contract it had executed with the company in accordance with the law, pursuant to regulations including the Measures for the Administration of Public Utilities, the Regulations of the Xinjiang Uighur Autonomous Region on Concessions for Public Utilities and the Measures for the Administration of Urban Gas. Soon thereafter, pursuant to an application by the company, the municipal construction bureau held a hearing in respect of the takeover notice by the government. In the hearing, the bureau decided to assign bureau personnel to fully take over the gas supply operated by the company as well as the company’s operating rights.
Following the hearing, the municipal court rendered a civil pretrial property preservation ruling pursuant to an application by the bureau, ordering that the company’s gas sales system and user information be sealed. The municipal government then took the company to court, requesting that the executed contract be terminated. Shortly thereafter, the company instituted a legal action against the municipal government in the Xinjiang high court, requesting continued performance of the contract.
Determining the nature of the disputeAfter being engaged by the municipal government as counsel, Tian Yuan discovered that both the parties as well as the court at first instance had mistaken conceptions of the nature of the contract in the case. The parties viewed the contract as a civil contract between equal entities, requesting property preservation and instituting the legal actions per the procedures for civil actions. The court, meanwhile, tried the case as it would for joint operations contracts.
  
We immediately submitted a legal opinion to the court asserting that the contract was not a simple contract between equal entities disposing of their civil rights and obligations. Rather, we argued, it had been executed by the municipal government in its capacity as an administrative authority for fulfilling its function of managing public affairs. The contract was conditioned on the necessary fact that the municipal government had granted the company a concession to engage in the supply of natural gas. The dispute therefore was over a concession contract with certain administrative attributes, not over a joint operations contract.
  
We asserted that the case should be deemed an administrative contract dispute and dealt with in an administrative action. However, the court did not concur. It continued to treat the contract as a civil contract and rendered a judgment to the effect that the termination of the contract was invalid.
Support from the highest court
Tian Yuan continued to act as counsel for the municipal government after the first instance judgment and filed an appeal with SPC. We again argued that the court had been in error to not handle the case as an administrative contract dispute. SPC concurred with our opinion, holding: “While there were certain civil elements in the contract involved and the legal relationship between the parties in the action, the relationship between the parties was not a civil law relationship arising between equal entities. Therefore the case did not fall within the scope of civil cases to be accepted by the courts, and the parties could separately institute an administrative action in accordance with administrative regulations.”
  
This case makes it evident that concession agreements are not ordinary civil contracts, regardless of whether they are considered from the perspective of subject matter, entities, objectives or provisions. Rather, concession agreements are administrative contracts executed by governments with third parties in the interests of the public with the purpose of fulfilling its administrative functions in accordance with the law. Concession agreements should thus be regulated by the administrative authorities’ special legal provisions.