Legal nature of the concession agreement and it’s content
AbstractThe paper clarified that the current stage is characterized by an integrated approach to developing a strategy for the improvement of public-private partnership, in particular through paying a greater attention to social aspects. Considerable attention is paid to the problems of the formation of mechanisms and methodological foundations of concession agreements, as well as the main factors that hinder its successful use. The emphasis is placed on the fact that the concession contract is a kind of business and economic contract, it is evidenced by its compliance with the features inherent in economic contracts, namely, it is concluded between the subjects of the economic activity or between one or more such persons and the non-operating legal entity in connection with the implementation of their economic activity. As a result of the research, the economic and legal nature of the concession agreement with the identification of features were determined, namely: 1) the parties of such an agreement are the public administration body on the one side and subject of management on the other; 2) essential conditions of the agreement are term and lucrative (paid) nature; 3) the purpose of concluding such contract is to meet public needs; 4) the subject of the contract is the right to create, construct, improve, manage or operate the object of the concession; 5) the object of the concession is only property of a public form of ownership; 6) the possibility of establishing additional restrictions by legal acts passed by bodies of public administration, which significantly affect the results of the concessionaire's economic and business activity. In addition, changes to the current legislation were proposed in order to improve concession activities. The distinction between general and special kinds of concession agreements is carried out on the basis of the legal regulation nature. The maximum term for conclusion of the concession contract is substantiated. It is proposed to supplement the list of essential conditions of the concession agreement by the following points: 1) the obligations of the concessionaire (as a debtor) regarding the use of new highly effective technologies at the facility; 2) the forms of concessionaire's (as a creditor) monitoring of compliance with the conditions of concession agreement by other part; 3) standards of goods (works, services) quality provided by the concessionaire (as a debtor); 4) requirements for the protection of the environment; 5) mutual obligations of the concession agreement parties to develop the social and transport infrastructure of the transferred object. The necessity to consolidate in the Law of Ukraine "On Concessions" a list of circumstances, whose occurrence may cause the termination of concession contract at the request of one of the concession parties, is substuntiated.
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