The proposition of a diversified dispute resolution mechanism is mainly to realize the reasonable diversion of cases and promote the substantive resolution of disputes.Under this framework,all dispute resolution mecha...The proposition of a diversified dispute resolution mechanism is mainly to realize the reasonable diversion of cases and promote the substantive resolution of disputes.Under this framework,all dispute resolution mechanisms must strictly follow the basic judicial principles and norms and abide by the bottom line of justice in the subjects and procedure of"dispute resolution"in order to gain the trust of the concerned parties.It is necessary to fully activate and give full play to their own characteristics and advantages and carry out the equal and orderly competition in the"diversified mechanism"to ensure that the concerned parties'right of free choice can be substantially expanded.As one of the components of the"diversified dispute resolution mechanism,"the administrative reconsideration system should have the dual aspects of judicialization and administerization.The two aspects are not in a diametric opposition or tradeoff relation,but rather,they merely differ in observation perspectives,zone of action and specific direction to such an extent without compromising their coexistence and reciprocal promotion.Only by the judicalization and administerization of the administrative reconsideration system can we get it out of the current dilemma and gradually turn it into the main channel to solve administrative disputes.展开更多
Based on research on a number of judicial decisions regarding concession and Public-Private Partnership(PPP)agreements,this paper demonstrates the problems and dilemmas of China's current PPP dispute resolution me...Based on research on a number of judicial decisions regarding concession and Public-Private Partnership(PPP)agreements,this paper demonstrates the problems and dilemmas of China's current PPP dispute resolution mechanism and clarifies three fundamental issues:concessiont^PPP;concession agreement工administrative agreement;and disputes related to administrative agreements administrative disputes.On the grounds of these conclusions,the paper argues that the logical chain of China's existing PPP and concession dispute resolution mechanism is untenable.The logic of the current mechanism starts from the definition of an administrative agreement;it then classifies concession agreement as administrative agreement;and finally subjects the disputes over concession agreements to administrative litigation.Yet,this starting point is problematic because the definition of administrative agreement and the distinction between public and private law attributes are difficult to determine precisely,as they lack the necessary theoretical clarity and uniqueness.Overall,the current legal situation of PPP in China is far from being satisfactory because a statutory law on PPP is absent,the existing laws and regulations on administrative agreements are primitive,and the judicial practice has not yet established unified and clear criteria.Against this backdrop,this paper proposes a possible way out.First,we should critically reflect on the current administrative agreement and PPP agreement theory.Then,we should apply the method of legal fact research,adopt doctrinal tools of the legal relationship theory and contract construction theory,and eventually establish a multiple dispute resolution mechanism to resolve disputes effectively.展开更多
文摘The proposition of a diversified dispute resolution mechanism is mainly to realize the reasonable diversion of cases and promote the substantive resolution of disputes.Under this framework,all dispute resolution mechanisms must strictly follow the basic judicial principles and norms and abide by the bottom line of justice in the subjects and procedure of"dispute resolution"in order to gain the trust of the concerned parties.It is necessary to fully activate and give full play to their own characteristics and advantages and carry out the equal and orderly competition in the"diversified mechanism"to ensure that the concerned parties'right of free choice can be substantially expanded.As one of the components of the"diversified dispute resolution mechanism,"the administrative reconsideration system should have the dual aspects of judicialization and administerization.The two aspects are not in a diametric opposition or tradeoff relation,but rather,they merely differ in observation perspectives,zone of action and specific direction to such an extent without compromising their coexistence and reciprocal promotion.Only by the judicalization and administerization of the administrative reconsideration system can we get it out of the current dilemma and gradually turn it into the main channel to solve administrative disputes.
文摘Based on research on a number of judicial decisions regarding concession and Public-Private Partnership(PPP)agreements,this paper demonstrates the problems and dilemmas of China's current PPP dispute resolution mechanism and clarifies three fundamental issues:concessiont^PPP;concession agreement工administrative agreement;and disputes related to administrative agreements administrative disputes.On the grounds of these conclusions,the paper argues that the logical chain of China's existing PPP and concession dispute resolution mechanism is untenable.The logic of the current mechanism starts from the definition of an administrative agreement;it then classifies concession agreement as administrative agreement;and finally subjects the disputes over concession agreements to administrative litigation.Yet,this starting point is problematic because the definition of administrative agreement and the distinction between public and private law attributes are difficult to determine precisely,as they lack the necessary theoretical clarity and uniqueness.Overall,the current legal situation of PPP in China is far from being satisfactory because a statutory law on PPP is absent,the existing laws and regulations on administrative agreements are primitive,and the judicial practice has not yet established unified and clear criteria.Against this backdrop,this paper proposes a possible way out.First,we should critically reflect on the current administrative agreement and PPP agreement theory.Then,we should apply the method of legal fact research,adopt doctrinal tools of the legal relationship theory and contract construction theory,and eventually establish a multiple dispute resolution mechanism to resolve disputes effectively.
