营期的保证，而对于其他一些私人投资者所关心和期望的诸如限制竞争保证、土地保证、投资回报率保证等，都没有作出具体规定。这势必将给予地方政府人投资者进行BOT项目谈判带来很大困难。对投资者而言，还意味着项目的政治风险大大增加，因为即使地方政府为有关项目提供他相关保证与承诺，也有可能会被其他法律法规或上级政府部门撤销。



迄今为止，由于我国尚无关于BOT投资方式的综合立法，而使投资者和政府均面临较大的风险，这也是BOT方式在我国还没有成功推广重要的原因。为减轻我国政府对政治风险承担的压力，必须尽快完善BOT投资法律体系，并鼓励外国投资者参加海外投资保险，通过本国的海外投资保险机构或多边投资担保机构承担政治风险，使我国政府对政治风险的承担减少到最低限度。





参考文献



[1] 《国际私法与国际经济法》. 法律出版社 . 1998年



[2] 幕亚平、赵康《BOT的法律问题与我国BOT立法》.《法学研究》.1998年2月



　



　



　



Analysis of Government’s Responsibility of Guarantee in the



BOT Investment of Highway Construction



　



Yan Qiang Huang Peng



(Department of Road and Traffic Engineering, Tongji University, 200092, Shanghai , China )



　



Abstract: Faced the tough mission of highway construction in the coming ten years , BOT investment style is a efficiency way to the make it ,yet ,it has many problem in implement .Investors always require government’s guarantee in by warranty law files ,such as :soil and logistics guarantee ,foreign currency exchange guarantee ,confined competition guarantee ,management time guarantee , investment returns guarantee ,etc .Though government’s support and guarantee is substantial to the success of BOT investment style , there are some law flaws ,and there are not an organizati on to harmonize all kinds organization which would otherwise lead to conflict ,also, guarantee of investment returns may make government faced law issue .therefore ,we should perfect the BOT investment law system as quickly as possible in order to de deduce the risk of government’s guarantee responsibility .



　



Key words: highway construction , BOT , government’s guarantee responsblity

　



Nowadays ,highway construction has formed the investment style of central government ,local government ,social finance organization and foreign finance organization investment ,which made highway construction have ground performance in recent years .Since it’s first highway ,from Shanghai to Jiading ,in 1989, china has had 10 000 kilometers highway ,NO.4 in the world , by the day of October 31,1999 ,when the highway——Jinan to Taian finished . It is only took 10 years to constructed 10 300 kilometers highway .Now ,with the successfully finished Beijing to Shanghai ,Beijing to&nb sp;Shenyang highway ,china has more than 16 000 kilometers highway , NO.3 in the world .China made the ground work which developed country almost took 40 years . By the year of 2010 ,China will have built more than 36 000 kilometers highway ,which means we have to build more than 20 000 kilometers highway in 10 years .faced the tough mission as well as short of capital , BOT investment style is a efficiency solution to the problem .



　



1. characteristic of BOT investment style



BOT investment style can be explained in two ways ,one is BOT :build—operate—transfer，the other is BOOT :build—own—operate—transfer or BRT :build一rent—transfer .In detail ,BOT of highway is government accredit investor ,including domestic and foreign , can invest and operate highway in limited years and freely transfer the item to government before the expire time .the English channel tunnel and Gangjiu channel tunnel of Hongkong were built and operated by BOT investment style .



　



Compared to other investment styles ,BOT item has is own law property as follows:



　



(1) Ownership : according to the contract of government and investor ,investor has the operate authority of highway in limited time ,and have to freely transfer the highway to government before the expire time .



　



(2) Responsibility : according to the contract between investor and government ,investor has the obligation of design ,invest ,construction ,operation and maintenance .



　



(3) Capital :

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