Government Investment and Financing Legal Observation (II) | Data Analysis of PPP Project Dispute Cases
Published:
2021-12-28
1. sample sources and retrieval methods 1. Case Source: Waco Advanced Legal Information Database 2. Search scope: nationwide 3. Referee date: January 1, 2019-November 22, 2021 4. Search keyword: full "PPP + project contract" 5. Type of instrument: Judgment/ruling 6. Number of documents: 601 7. Retrieval time: November 22, 2021 2. general situation As can be seen from the year distribution map of the number of cases, from 2019 to 2020, the number of cases involving PPP projects nationwide showed an increasing trend, with an increase of about 67.5 percent in 2020 compared to 2019. The number of litigation-related cases decreased significantly in 2021 compared to 2020, and although there is a lag in the conclusion of cases, the number of cases is likely to be lower than the number of litigation-related cases in 2019. The data collection time of this report is as of November 22, 2021, and the number of cases involving PPP projects after November 2021 is yet to be further observed. Figure 2.1 Distribution of the Number of Cases by Year With the popularization and application of PPP model and its vigorous development, the disputes caused by PPP projects are increasing year by year. On the one hand, since 2014, PPP projects are still expanding in scale, and the expansion of the market has increased the number of disputes as a whole. On the other hand, since the end of 2017, the General Office of the Ministry of Finance issued the ''Notice on Regulating the Management of the Comprehensive Information Platform Project Library of the Government and Social Capital Cooperation (PPP) ''(Cai Ban Jin [2017] No. 92), the ''Ministry of Finance Regarding the Promotion of the Implementation Opinions on the Standardized Development of Government and Social Capital Cooperation (Cai Jin [2019] No. 10)," Government Investment Regulations "and other documents have been issued successively, the development of standardization is bound to lead to a rise in the number of disputes. With the development of PPP projects and the establishment and improvement of standardized institutional mechanisms, the PPP model, social capital parties and government departments will gradually return to rationality, and the number of PPP project disputes will gradually decrease. In terms of geographical distribution, the current PPP project litigation cases are mainly concentrated in Henan Province, Hunan Province and Shandong Province, accounting for 10.85 percent, 9.32 percent and 8.47 percent respectively. Among them, the number of PPP project disputes in Henan Province is the largest, reaching 64. Figure 2.2 Geographical distribution of cases It can be seen that compared with other provinces and cities in China, the number of PPP project disputes in Henan Province, Hunan Province and Shandong Province is more, and the legal risks caused by PPP projects are more prominent. 3. Case and Industry Analysis As can be seen from the distribution of cases shown in the figure, the main types of cases involved in PPP project litigation cases from January 1, 2019 to November 22, 2021 are civil, with 530 cases (some of which are civil cases, which are ignored here), accounting for 82.55 per cent, followed by administrative and criminal cases. Figure 2.3 Distribution of Cases Civil cases include contract disputes, property rights disputes, tort liability disputes, labor and personnel disputes, financial disputes and intellectual property disputes caused by PPP projects, of which 381 were contract disputes, accounting for 63.4 per cent. Among the contract disputes, the top three cases are construction project contract disputes, sales contract disputes, and loan contract disputes. There are 42 administrative cases involved in PPP project litigation, including confirming that administrative acts are illegal and advocating the revocation of administrative penalty decisions. Criminal cases include crimes such as embezzlement, bribery, abuse of power, embezzlement, collusion in bidding, and contract fraud by impersonating PPP projects. It can be seen that because PPP projects involve multiple fields and multiple legal relationships, the types of disputes are diversified. Figure 2.4 Case Industry Classification From the industry classification, it can be seen that the industry distribution of PPP project-related cases is mainly concentrated in the construction industry (44%), leasing and business services (11%), scientific research and technical services (8%), water conservancy, environment and public facilities management (7%), and real estate (6%). Among them, there are 226 in the construction industry, 54 in the leasing and business services industry, 42 in the scientific research and technical services industry, 38 in the water conservancy, environment and public facilities management industry, 30 in the real estate industry, and 124 in other industries. Analysis of 4. Trial Procedures and Judgment Results Figure 2.5 Procedural classification of cases From January 1, 2019 to November 22, 2021, there were a total of 601 cases. As can be seen from the classification chart of case procedures, the trial procedures of PPP project-related cases were mainly first-instance cases (59.37 per cent), 357 cases, second-instance cases (29.35 per cent), 176 cases (2.99 per cent), retrial cases (18 per cent) and enforcement cases (6.8 per cent). Figure 2.6 Case Judgment Results ◆ First Instance Judgment Results According to the data on the results of the first instance, 241 cases, or 40.13 per cent, were fully/partially supported; 60 cases, or 9.95 per cent, were fully dismissed; and 33 cases, or 5.47 per cent, were dismissed. ◆ Judgment Result of Second Instance According to the data of the judgment results of the second instance, 126 cases, accounting for 20.9 per cent, were upheld, while 40 cases, accounting for 6.63 per cent, were revised. ◆ Results of retrial judgment According to the data of the retrial judgment results, there were 8 cases that upheld the original judgment, accounting for 1.33 per cent. Amount Analysis of 5. Dispute Figure 2.7 Amount of subject matter involved Through the visual analysis of the amount of the PPP project involved in litigation, it can be seen that the number of cases with a bid amount of less than 500000 yuan is basically the same as the number of cases with a bid amount of more than 500000 yuan, with 282 cases. From the data alone, the PPP project involves a huge amount of investment, the case of the amount of the subject matter of the dispute does not form a large contrast. Combined with the above, it can be seen that at present, it is mainly construction contract disputes, sales contract disputes, loan disputes, etc., the contract disputes between the government and the social capital party have not been triggered on a large scale. After a detailed analysis of specific cases, in PPP project litigation, the social capital party is often in an active position, taking the initiative to file a relevant lawsuit to claim rights and interests after the dispute occurs, while the government party is often in a passive position, usually not the party that initiates the lawsuit. Analysis of 6. trial period Figure 2.8 Trial Period Through the visual analysis of the trial period, it can be seen that the trial time under the current conditions is more in the range of 31-90 days, with an average time of 53 days. Application Analysis of 7. High-frequency Law Through the search of cases, it is found that the high-frequency law mainly includes the following two aspects: (1) High-frequency substantive law Figure 2.9 High-frequency entity law (2) High-frequency procedure law.
1. sample sources and retrieval methods
1. Case Source: Waco Advanced Legal Information Database
2. Search scope: nationwide
3. Referee date: January 1, 2019-November 22, 2021
4. Search keyword: full "PPP project contract"
5. Type of instrument: Judgment/ruling
6. Number of documents: 601
7. Retrieval time: November 22, 2021
2. general situation
As can be seen from the year distribution map of the number of cases, from 2019 to 2020, the number of cases involving PPP projects nationwide showed an increasing trend, with an increase of about 67.5 percent in 2020 compared to 2019. The number of litigation-related cases decreased significantly in 2021 compared to 2020, and although there is a lag in the conclusion of cases, the number of cases is likely to be lower than the number of litigation-related cases in 2019. The data collection time of this report is as of November 22, 2021, and the number of cases involving PPP projects after November 2021 is yet to be further observed.
Figure 2.1 Distribution of the Number of Cases by Year
With the popularization and application of PPP model and its vigorous development, the disputes caused by PPP projects are increasing year by year. On the one hand, since 2014, PPP projects are still expanding in scale, and the expansion of the market has increased the number of disputes as a whole. On the other hand, since the end of 2017, the General Office of the Ministry of Finance issued the ''Notice on Regulating the Management of the Comprehensive Information Platform Project Library of the Government and Social Capital Cooperation (PPP) ''(Cai Ban Jin [2017] No. 92), the ''Ministry of Finance Regarding the Promotion of the Implementation Opinions on the Standardized Development of Government and Social Capital Cooperation (Cai Jin [2019] No. 10)," Government Investment Regulations "and other documents have been issued successively, the development of standardization is bound to lead to a rise in the number of disputes.
With the development of PPP projects and the establishment and improvement of standardized institutional mechanisms, the PPP model, social capital parties and government departments will gradually return to rationality, and the number of PPP project disputes will gradually decrease.
In terms of geographical distribution, the current PPP project litigation cases are mainly concentrated in Henan Province, Hunan Province and Shandong Province, accounting for 10.85 percent, 9.32 percent and 8.47 percent respectively. Among them, the number of PPP project disputes in Henan Province is the largest, reaching 64.
Figure 2.2 Geographical distribution of cases
It can be seen that compared with other provinces and cities in China, the number of PPP project disputes in Henan Province, Hunan Province and Shandong Province is more, and the legal risks caused by PPP projects are more prominent.
3. Case and Industry Analysis
As can be seen from the distribution of cases shown in the figure, the main types of cases involved in PPP project litigation cases from January 1, 2019 to November 22, 2021 are civil, with 530 cases (some of which are civil cases, which are ignored here), accounting for 82.55 per cent, followed by administrative and criminal cases.
Figure 2.3 Distribution of Cases
Civil cases include contract disputes, property rights disputes, tort liability disputes, labor and personnel disputes, financial disputes and intellectual property disputes caused by PPP projects, of which 381 were contract disputes, accounting for 63.4 per cent. Among the contract disputes, the top three cases are construction project contract disputes, sales contract disputes, and loan contract disputes.
There are 42 administrative cases involved in PPP project litigation, including confirming that administrative acts are illegal and advocating the revocation of administrative penalty decisions. Criminal cases include crimes such as embezzlement, bribery, abuse of power, embezzlement, collusion in bidding, and contract fraud by impersonating PPP projects. It can be seen that because PPP projects involve multiple fields and multiple legal relationships, the types of disputes are diversified.
Figure 2.4 Case Industry Classification
From the industry classification, it can be seen that the industry distribution of PPP project-related cases is mainly concentrated in the construction industry (44%), leasing and business services (11%), scientific research and technical services (8%), water conservancy, environment and public facilities management (7%), and real estate (6%). Among them, there are 226 in the construction industry, 54 in the leasing and business services industry, 42 in the scientific research and technical services industry, 38 in the water conservancy, environment and public facilities management industry, 30 in the real estate industry, and 124 in other industries.
Analysis of 4. Trial Procedures and Judgment Results
Figure 2.5 Procedural classification of cases
From January 1, 2019 to November 22, 2021, there were a total of 601 cases. As can be seen from the classification chart of case procedures, the trial procedures of PPP project-related cases were mainly first-instance cases (59.37 per cent), 357 cases, second-instance cases (29.35 per cent), 176 cases (2.99 per cent), retrial cases (18 per cent) and enforcement cases (6.8 per cent).
Figure 2.6 Case Judgment Results
◆ First Instance Judgment Results
According to the data on the results of the first instance, 241 cases, or 40.13 per cent, were fully/partially supported; 60 cases, or 9.95 per cent, were fully dismissed; and 33 cases, or 5.47 per cent, were dismissed.
◆ Judgment Result of Second Instance
According to the data of the judgment results of the second instance, 126 cases, accounting for 20.9 per cent, were upheld, while 40 cases, accounting for 6.63 per cent, were revised.
◆ Results of retrial judgment
According to the data of the retrial judgment results, there were 8 cases that upheld the original judgment, accounting for 1.33 per cent.
Amount Analysis of 5. Dispute
Figure 2.7 Amount of subject matter involved
Through the visual analysis of the amount of the PPP project involved in litigation, it can be seen that the number of cases with a bid amount of less than 500000 yuan is basically the same as the number of cases with a bid amount of more than 500000 yuan, with 282 cases. From the data alone, the PPP project involves a huge amount of investment, the case of the amount of the subject matter of the dispute does not form a large contrast.
Combined with the above, it can be seen that at present, it is mainly construction contract disputes, sales contract disputes, loan disputes, etc., the contract disputes between the government and the social capital party have not been triggered on a large scale. After a detailed analysis of specific cases, in PPP project litigation, the social capital party is often in an active position, taking the initiative to file a relevant lawsuit to claim rights and interests after the dispute occurs, while the government party is often in a passive position, usually not the party that initiates the lawsuit.
Analysis of 6. trial period
Figure 2.8 Trial Period
Through the visual analysis of the trial period, it can be seen that the trial time under the current conditions is more in the range of 31-90 days, with an average time of 53 days.
Application Analysis of 7. High-frequency Law
Through the search of cases, it is found that the high-frequency law mainly includes the following two aspects:
(1) High-frequency substantive law
Figure 2.9 High-frequency entity law
(2) High-frequency procedure law.
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