PPP项目合同争议通过行政诉讼救济的困境研究

Study on Difficulties in Dispute Resolution of PPP Contract via Administration Litigation

新修订的行政诉讼法将行政协议争议纳入行政诉讼受案范围,但在制度层面和实践层面造成双重困境。以政府特许经营协议为样本,结合我国目前积极推进的PPP模式,分析其通过行政诉讼救济途径存在困难的原因,指出在行政契约当事人对于行政主体优益权达成合意内化合同条款的基础上,采用行政诉讼方式进行救济是不必要的。

The recently amended Administrative Procedure Law of the People＇s Republic of China puts the administrative contract disputes into the scope of accepting cases of administrative litigations,which makes a predicament both in perspective of system and practice. Based on the franchise agreement and associated with the PPP mode that is actively implemented by the government at the present time,this paper analyzes the reasons that why it is difficult to get legal remedy via administration litigation for administrative contract,and shows that there is no necessity to take an administrative action in order to seek remedy,because the rights of both parties to the administrative contract are written down as contract terms.