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Energy litigation: photovoltaic power generation dispute practice

photovoltaic power generation is a new energy technology that uses the photovoltaic effect of the semiconductor interface to directly convert light energy into electric energy. This industry has developed rapidly in recent years, but at the same time, affected by the economic development cycle, litigation disputes occur frequently, and mainly focus on site leasing, construction engineering, equipment procurement, project financing and other links

problems related to site (land, roof) leasing

photovoltaic power generation requires a wide range of sunlight, so photovoltaic arrays usually require a large area of land or above ground space. In practice, for reasons such as cost control, photovoltaic projects in many cases do not directly obtain land use rights in the form of land transfer, but obtain project land through leasing

the opinions on supporting the development of new industries and new formats, promoting public entrepreneurship and innovative land use ("No. 5 document") jointly issued by the six ministries and commissions in 2015, the opinions on supporting photovoltaic poverty alleviation and regulating the land use of photovoltaic power generation industry ("No. 8 document") jointly issued by the three departments recently, as well as the documents issued by the State Forestry Administration and the Ministry of land and resources to regulate the land use of photovoltaic projects. Because of China's special land system and policies, site leasing may become one of the important risk points of photovoltaic power generation projects

first, the maximum term of the lease is 20 years. Document No. 5 makes special provisions on the land lease of photovoltaic and wind power projects, that is, if the project uses unused land such as Gobi, desert and wasteland, the land part that does not occupy and occupy the land and does not change the surface morphology is allowed to be obtained by lease. However, according to the provisions of the contract law, the maximum term of the lease contract is 20 years, and the operation cycle of the photovoltaic project may exceed this 20-year term. In order to make the lease term of the site cover the duration of the project, the parties can realize it by nesting and connecting two or more lease contracts

secondly, it is forbidden to occupy permanent basic farmland. No. 8 civilization clearly stipulates that "it is forbidden to occupy permanent basic farmland in any way, and it is forbidden to develop photovoltaic power generation projects in areas expressly prohibited by relevant national laws, regulations and plans". Although the effect level of this opinion is only departmental regulations, considering the particularity of cultivated land and the harsh words such as "Prohibition", the transaction of occupying basic farmland will face the legal risk of invalidity

it is worth noting that the absence of legislation on space rights in China may become an uncertain factor affecting the operation of photovoltaic projects. Photovoltaic power generation is based on solar energy, so photovoltaic arrays need to enjoy exclusive rights to the light in their corresponding space, that is, two photovoltaic arrays cannot exist in the same range of aboveground space at the same time. Under the existing legal system, the lease creditor's rights enjoyed by photovoltaic operators cannot provide the right protection of the above exclusive property right feature. Photovoltaic power generation is still a young emerging industry, and the degree of marketization of the power industry in China is relatively low. With the continuous maturity of photovoltaic technology and the promotion of power market-oriented reform, the risk of the absence of space rights legislation is expected to eventually surface

problems related to construction projects

photovoltaic projects involve more content in the field of construction projects, so the legal issues in the field of construction projects in practice, such as bidding, construction qualification and so on, are reflected in the photovoltaic field

first of all, the contract of the project that should be tendered but not tendered will face the legal risk of invalidity. The bidding law stipulates that "large-scale infrastructure, public utilities and other projects related to social public interests and public safety; projects invested in whole or in part with state-owned funds or financed by the State..." must be subject to bidding. The scope and scale standard of engineering construction project bidding stipulates that "the scope of infrastructure projects related to social and public interests and public safety includes: (1) energy projects such as coal, oil, natural gas, electricity and new energy..."; At the same time, those who meet one of the conditions "(I) the estimated price of a single construction contract is more than 2million yuan; (II) the procurement of important equipment, materials and other goods, and the estimated price of a single contract is more than 1million yuan;...", must be subject to bidding

accordingly, in practice, if photovoltaic power generation projects need to go through bidding procedures but fail to go through, the relevant contracts may be deemed invalid. In the (2015) min Yi Zhong Zi No. 144 civil judgment, the Supreme People's Court recognized that the case involved "the general contract for photovoltaic power generation projects is invalid because it violates the mandatory provisions of Article 3 of the bidding law of the people's Republic of China". In practice, many private enterprises invest in photovoltaic projects, and their legal awareness of bidding is weak, so this risk can not be ignored

secondly, the contractor and constructor of photovoltaic projects should have the qualifications prescribed by law. Photovoltaic projects are divided into centralized photovoltaic power stations and distributed photovoltaic power generation projects. Generally speaking, the former belongs to power construction projects. According to the provisions of the qualification standard for construction enterprises, according to the size of photovoltaic power stations, they should be constructed by contractors with corresponding qualification levels of general contracting qualification for power engineering construction; For the latter, the Interim Measures for the management of distributed photovoltaic power generation projects and the relevant policies on the further implementation of distributed photovoltaic power generation stipulate that the units undertaking project design, consulting, installation and supervision in distributed photovoltaic power generation projects should have the corresponding qualifications prescribed by the state. Therefore, the legal risk of connecting with the fatigue loading experiment control module when the contractor has no construction qualification in the construction project contract and the construction contract signed by borrowing the qualification is invalid also exists in the construction of photovoltaic projects

however, in the construction of photovoltaic projects, since the main works of photovoltaic array are usually the production and installation of photovoltaic power generation system components, this contract has the characteristics of contract. For example, in the (2017) qingminshen No. 66 case retried by the Qinghai Provincial Higher People's court, The court found that: "Jinliang company undertakes the steel structure fabrication and installation works of the galvanizing workshop of Xining Gaobei concentrating photovoltaic power generation system and component production base, which is in line with the legal nature of the contract. The contractor illegally subcontracts, illegally subcontracts the construction project, or subcontracts the construction project to a unit without corresponding qualifications as stipulated in relevant laws and administrative regulations, and the signed construction contract of the construction project is invalid and does not apply to the contract."

therefore, if the nature of the contract is defined as a contracting contract rather than a construction project contract, the impact of the aforementioned Interim Measures for the management of distributed photovoltaic power generation projects and the relevant policies on the further implementation of distributed photovoltaic power generation on the effectiveness of the contract can be avoided to a certain extent

issues related to project transfer

project transfer is often referred to as "roadblock" trading. At present, an important source of profits from photovoltaic power generation projects is national industrial subsidies. In order to regulate arbitrage in the market, the National Energy Administration issued the notice on regulating the order of investment and development of photovoltaic power stations ("document 477"), It is stipulated that "the government filing document cannot be transferred with compensation. Our city has more than 10 aviation related enterprises such as Nanshan aluminum and 513 Institutes of China Aerospace Science and technology group, and the relevant rights and interests. The investment subject of the project that has gone through the filing procedures shall not transfer the project to other investment subjects without the consent of the filing authority before the project is put into operation". Of course, the effectiveness level of this provision still belongs to the department rules

at the same time, the Interim Measures for the management of photovoltaic power station projects and the Interim Measures for the management of distributed photovoltaic power generation projects in 2013 stipulate that photovoltaic projects as public power sources shall be subject to filing management. In this case, the project filing documents obtained by the project subject do not belong to the administrative license. Therefore, the provisions of the administrative license law that the Licensee shall not resell, lease, lend administrative license certificates, or illegally transfer administrative licenses in other forms cannot be directly applied to the transfer of filing documents and related rights and interests

for the above reasons, it seems impossible to draw the conclusion that the transfer of the filed documents is in violation of the mandatory provisions of the effectiveness of laws and administrative regulations, so it should be deemed invalid. However, it is worth noting that since the national energy administration has different regulations on the installed capacity of photovoltaic in each province every year, the so-called photovoltaic project filing is not an administrative license on the surface, but it is actually more than an administrative license; Moreover, behind the filing of photovoltaic projects is the national and local financial subsidy interests. Unauthorized project transfer still has the risk of malicious collusion and damage to national interests, which is recognized as invalid

in order to avoid the above risks, in addition to transferring the equity of the project company, there is also an alternative practice of "pre transfer" of the project in practice. In this regard, Document No. 477 stipulates that "before the project is put into operation, the investment subject of the project that has gone through the filing procedures shall not transfer the project to other investment subjects without the consent of the filing authority", and "for the purpose of reselling the project filing documents or illegal transfer for improper benefits", "for legitimate reasons, the project cooperative development and transfer of project assets, and the government filing documents and related rights and interests shall not be transferred with compensation." Therefore, if there is an obvious characteristic of scalping and arbitrage, the validity of the contract still has the legal risk of being denied

photovoltaic power generation project and financial leasing

photovoltaic project construction and operation costs a lot, takes a long time to recover investment, and has great financing needs; At the same time, the proportion of equipment in photovoltaic project assets, of which nearly half of the battery plants in Shenzhen, which mainly make low-end products, have closed down, which is consistent with the characteristics of financial leasing. Therefore, it is common to use financial leasing for financing in practice. In terms of financial leasing mode, due to the wide applicability of the power produced as a project, in addition to the traditional direct lease and after-sale leaseback mode, with the promotion of the marketization of China's power transaction, personalized financial leasing transaction modes such as "lease contract/power purchase agreement (PPA) mode" may germinate. With regard to the mainstream direct lease and leaseback models, we need to pay attention to the following issues:

first, photovoltaic power generation modules are the subject matter of qualified financial leasing. Photovoltaic power generation devices are mainly composed of solar panels (modules), controllers and inverters. After completion, such devices have the characteristics of adding to real estate. For such subject matter, Article 2 of the model lease law of the International Institute for the unification of private law stipulates that the lease item is no longer a lease item not only because it is attached to or embedded in the real property. The Supreme People's court approved the above provisions of the leasing model law in the relevant public publications, and held that "the financial leasing contract of the equipment attached and built on the real estate as the leased object is still a financial leasing contract"

secondly, the value of the leased property is significantly lower than the financing amount, which may not constitute a legal relationship of financial leasing. The judicial interpretation of financial leasing stipulates that whether it constitutes a legal relationship of financial leasing should be determined in combination with the nature, value, composition of rent and other factors of the subject matter. Although the value of equipment accounts for a large proportion of photovoltaic project assets, due to national policy subsidies and other reasons,

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