About the Chinese legal system of administrative contract - system, content and Construction

[Abstract] Chinese legal system of administrative contracts should be built as soon as possible the causes and under is: ① administrative contract in practice objective, long-term, widespread; ② modern administrative contract with the unique features necessary administrative, ③ absence of legal limits administrative contract development and function of the play, ④ theoretical dispute not refuse or postpone the establishment of administrative legal system of contract grounds. Chinese establishment of administrative contract law should be chosen mode of public law mode, a relatively complete legal system, including administrative contract subject system, rights regime, behavior systems, accountability and relief system in five areas.

[Keywords administrative contract, legal system, system, content, build, write papers

[Writing Year] 2012


Management of public affairs in human history, there have been two systems play a magical role, one program, one contract. Use of procedures pushed Civilization door, realized tame rulers, the powers drying in the sun the dream of mankind since then can be used with arbitrary phase and arbitrary rule of man bowed not, [a] contract is to make human use to find the ladder leading to good governance, to achieve a rigid way of governance simultaneously, so that the citizens' orderly participation in political , [2] for all to enjoy the right to rule is technically possible, and to break the "master-servant relationship" Name difficult to break the eternal conundrum. Jue micro Anecdotes, contract concepts and practices in various stages of development of human society , fields and levels are available or clearly or vaguely rendered solid understanding of human life as a sampling method [3] is an important aspect, but also as political theory through the maze of a rational power by deed [4] and rule, administrative contracts [5] is the most typical form of practice paper focus on this, the concept is intended to contract according to the legal system of China administrative contracts should be established as soon as possible the reasons, according to the, system, content and methods.

First, the administrative contract to build China's legal system and based on cause

Administrative contract is to establish, change or terminate consensual relationship between administrative law. [6] is to use the legal system of the administrative contract adjustment of administrative legal norms contractual relationship formed by various systems in general. Administrative contract to build Chinese legal system, we must first agree on a clear obstacles, including the practice of identity, recognition and legislative recognition theory three aspects it seems, does not exclude the practical level through administrative contracts already entered into by means administrative purposes, in theory, also be found in the living space of the administrative contract, so the focus should be placed through Practice material collate and theoretical level of careful argumentation promote legislation to establish identity and legal author believes that the appropriate administrative contract as soon as possible to build China's legal system and based on that reason:

(An administrative contract in practice, objective, long-term, widespread

First, the administrative contract exists objectively in practice With unilateral administrative changes to the contract of administration, it is difficult for the private law principles and norms adjusted administrative contract in the practical application of the administration is an indisputable fact that, for example, for the implementation of the scheme Fertility basic national policy and practice in the use of family planning contract to become the "Strengthening family planning management and service work in an effective measure." [7] Again, our municipal utility market-oriented process, the competent authorities obtained through franchising enterprises the right to sign the franchise agreement, "built up an encouraging private investment in both the public interest but also public-private partnerships." [8] are numerous similar examples can be said that the purpose of administration through the administrative contract, has become administrative body in modern society can not not use a legal means of contract law in the formulation << >> in the process, some scholars of the "Chinese reality there is no administrative contract" [9] questioned, but objectively speaking, That argument is that the nature and scope of administrative contracts should be how to understand, as well as "Do you want to adjust the contract law" [10] of the problem, rather than administrative contract in the objective existence of the problem. On the part of scholars hearts on administrative contract "great question mark", [11] the reality has been given the most eloquent answer.

Secondly, the long-standing administrative contract in practice. Administrative Contract and Civil Contract stalemate led to difficult for us to pinpoint exactly originated in administrative contracts when, where. [12] but it is generally believed that the administrative contract is a product of China's reform and opening up. [13] Third Plenary Session of the CPC later, in rural areas, farmers contract obtained through administrative land use rights, creating a production and management contract responsibility system in rural areas, to achieve great changes in the agricultural sector. 13th CPC National Congress proposed to further clarify: "No matter what kind of management responsibility, should the use of legal means to determine the form of contracts with national enterprises, business owners and business relations between the responsibilities and rights. "thus bringing the practice of administrative contracts extended to industrial, commercial, transportation, trade, infrastructure and other areas. [ 14] as the two major trends of democratization and market-oriented product of the interaction, and the modern administrative contract with the government due to fit the character, to be in the field of long-standing administrative practice.

Finally, the administrative contract in practice is widespread. Administrative contract universality features: First, it is prevalent in all areas of administration, including government concession areas, areas of state-owned land use right transfer of state assets contracting, sale Or rented sector, government procurement, credit policy areas, the executive commissioned research, consulting, etc. Second, it has developed a variety of forms, including administrative collaboration contracts, administrative hiring contracts, public execution of the contract, administrative commission contract , franchising contracts, administrative benefit contracts, contract administration donation, administrative settlement contracts, expropriation expropriation compensation contract, damages the contract, official reward contracts, public housing lease contract, etc. Third, it is still in the process of rapid expansion. As democracy administration, benefits administration, promotion, administrative contract application space is growing. Moreover, public contracts and the like administrative contract appears indicating that the traditional view that administrative contracts Forward contracts should not use administrative areas (such as the intervention in administrative areas of infiltration. administrative contract universality means that it has become the norm of administrative acts, [15] in place gradually administrative practice.

(Two for the modern administrative contract with the unique features necessary administrative

Administrative legal relationship establishment, change, destroy, there are two ways: one is based on the law, and second, by intention. Intention expressed by the establishment, modification, elimination of administrative legal relations situation, but also two points: First, unilateral administrative body for its intention to establish, change, eliminate administrative legal relationship, the second is the main administrative law consistent with the parties intention to establish, change, eliminate administrative legal relationship. administrative nature of the contract, is to establish a consistent meaning representation, change, eliminate administrative law rights and obligations.

Based on the nature of the administrative contract with the function can be summarized as ten aspects: ① located right function, namely through the creation of administrative contract rights and obligations of the parties. Proverbs, saying: "A contract is the law between the parties." The law has set the right features, administrative contracts within certain limits have the same functions. [16] ② support functions. [17] that is, by administrative contract to protect interests of the parties and other interested persons. administrative contract for the parties involved in making the administrative act provides an opportunity When the administrative relative person involved in the process of making a final decision to be protected, the results are more natural than without the administrative relative person involved in the administrative act better protect their interests. ③ controlling function that is controlled through administrative authority of government contract set to run and expansion. Controlling function is mainly reflected in the administrative requirements of the Government Contracts relatively equal treatment, respect the will of the relative, the relative importance of people's right to require the Government to credit and responsibility. [18] ④ harmonic functions, namely through the administrative contract between the parties to the conflict to reconcile Administrative contents of the contract more flexible and easier to get the parties to demand the greatest common divisor, and thus able to reconcile conflicts of interest, reducing the purpose of administration costs. ⑤ organizational functions, ie, contract formation through administrative coordination between administrative bodies . called primary structures of contemporary government contracts, is to contact the framework of traditional government uncoordinated part of the main media, and fill an important component of national institutions vulnerability. [19] ⑥ alternate functions. Namely, by administrative contract alternative or complementary administrative decision because of the administrative contract is one of the means to achieve administrative purposes, the administrative body in the performance of official duties to choose from more than one weapon. ⑦ normative functions, ie, the rights and obligations of the parties by agreement administrative the legal effect of the contract regulating the behavior of the parties and constraints. administrative contract between the parties "law" means the administrative contract with the equivalent force of law, the parties to restrain and regulate the behavior of beams. ⑧ mobilization functions, namely through administrative Contract mobilize private resources for its strength and coordination to achieve administrative purposes the administrative body of the function can make use of private administrative body strength and resources, not just its own strengths and resources for the public to create a welfare society. ⑨ participation feature, namely through administrative contracts and other interested parties the executive relative to participate in public affairs. administration of contracts to fulfill needs administrative body with administrative counterpart to the "equivalent" means in respect of official representation for consultation, negotiation, entering into programs to implement this interactive process, ie the administrative relative person involved in the process engaged in public service. ⑩ efficiency function, namely to improve government contracts through administrative efficiency of the activities is generally believed that the efficiency advantages of administrative decisions, administrative contracts are the advantages of democracy. Indeed, administrative contract In setting part of the advantage of democracy in the implementation part of the advantage of efficiency, the overall efficiency of both democracy and the two values.
Aforementioned functions determines the administrative contract is declared modern administrative concepts [20] are an important carrier, is to implement the essential foundation for the modern administrative policy platform, is to manage the modern administrative affairs as essential way a nutshell, is an integral part of the modern administrative legal means. [21]

(Three legal absence limit the development and function of the administrative contract to play

Legal Absence main manifestations are: first, the legislature has not expressly accept and use "administrative contract" concept, nor does it correspond with the concept of the administrative contract content and legislative system issues, second, administrative contracts should apply basic rules are neglected at the legislative level, and the third, for certain types of administrative contracts (such as the state-owned land transfer, transfer contracts, government procurement contracts) the legislative, regulatory density is low, the key question did not elaborate.

Absence of legal contract has an impact on their own development and administrative functioning of the bottleneck. Firstly, the absence of rule of law so that the development of administrative contracts lack the basic conditions as contractual elements and powers of the elements as well as private and public law fusion graft outcomes administrative contract system in the previous system is unstable factors and forces of change, "may produce a lot of variation." [22] If you do not give it a proper legal system through the adoption, by the existing legal system (such as "Administrative Procedure Law >>, << >> squeeze of the Government Procurement Law administrative contract, only in a very small experiment as an administrative innovation In memory range, it is difficult justifiably promote and sustain applications, barely whom will be considered illegal. [23] Second, the absence of legal value and role of administrative contracts unable to play according to the experience of Taiwan, China, "administrative contract as one kind of the purpose of administration of the means to exert its function, both the need for an academic argument, conceptual breakthrough, also need to have legislation on the establishment. "lack of legal support, administrative contracts in operation often" Vanish private law. " to the detriment of the public interest and the interests of individual people. Again, the absence of the legal risks and drawbacks of administrative contracts can not be avoided. administrative contract not only has a positive value and advantages, but also associated with the corresponding risks and drawbacks in the application of administrative contracts in Japan Historically, there was an "administrative body from selling executive power" [24] of the phenomenon, while the United States has proved that the administrative contract is widely used in certain circumstances "would lead to dire consequences," "enables the government to approve the appointment of evade constitutional review. "[25] This is because, in the case of absence of the system, users will be able to pass the administrative contract agreement violation or evasion law, the parties' satisfaction will be directly above the public interest above personal gain or pass public liability, damage the public interest or the interests of third parties. [26] Finally, the legal issues associated with absence hindered the proper solution. correlation between institutional, administrative contract system missing, it will bring disaster to the negative effects associated issues, for example << state-owned land on the housing levy and Compensation Ordinance, Section 25 [27] prescribed expropriation compensation agreement is typical of the administrative contract, shall apply rules of public law, but according to the current system of administrative litigation and administrative cases the original defendant Liangzao constant, still does not fit the "official report China" case, and the court can not "complete jurisdiction", which will definitely affect the expropriation related issues. [28]

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(Four theoretical controversy is not denying or delaying the legal system to establish the reasons for administrative contract

The need for legislation theoretically fully prepared to do, but does not require theoretical consensus reached (even basic consensus). Theoretical consensus and is promoted by the relationship between the legal system to build relationships rather than successively, one can not be a prerequisite for the other from experience Look, the theory controversial issues, and sometimes just need to legislate to end or reduce the establishment controversial. In Germany, whether by way of contract for the formation of administrative legal relations controversy continued until 1976 >> << Administrative Procedure Act's promulgation and implementation is appropriate cases. [29] on the German administrative contract terms of legislation, to be drawn lesson is that the "German Federal Administrative Procedure Act legislation with the relevant provisions of administrative contracts, not only showing fragments case, and left many explanations on the questions of policy and legislation, and since constitutional point of words, nor without missing. This are understandable phenomenon, cover legislation before then or even earlier, after all, relatively closed administrative law, focusing on the legality of administrative contract, without further discuss its 'formative', in particular the formation of administrative contracts to further the question. " . [30] Thus, two aspects should be emphasized: First, the problem is not due to inconclusive refuse or delay legislation, the second is not because there is evidence to administrative tasks and ignore the reality of the contract system of internal structure.

Second, China's administrative contract establishment mode selection

Public and private law dichotomy is Chinese legal system actually uses a legal technique. Administrative contract as administrative elements and contractual elements of the integration of body, how to embed the basis of a public-private Act II into law order is a convenience in order to obtain the corresponding had to bear the burden. summed up alternative solutions in three ways: First, private mode, that is, through the adjustment of administrative rules of private contractual relationship, two public law model, that is, through the adjustment of administrative law rules of contractual relationships, three are split model, that split administrative contract administrative elements and contractual elements, with the rules of public law which administrative adjustment factors used to adjust the rules of private law contractual elements of which the Chinese administrative contract law should be selected organizational model for the following reasons:

First, the administration is essentially a contractual relationship by adjusting the administrative rules of public law relationship from which the field of view, the administrative contract occurred in administrative relations, rather than in the field of civil and commercial matters, objective look from the activity, the use of administrative contracts is to increase social welfare agency, rather than promote personal interests (even if in fact may indeed promote personal interests, from the legal property of view, is an administrative contract can replace or supplement the legal acts of administrative decisions, rather than the civil legal act, from behavioral content, the administrative contract is the direct execution of business activities, rather than simply dispose of private rooms affairs whereby it can be determined, administrative nature of the contractual relationship between the executive, rather than civil and commercial relations, public law rules should be adjusted, although administrative contract containing both administrative elements, but also containing contractual elements, but the fine research, contract forms and means simply, is the physical and administrative purposes, so the administrative contracts, administrative feature is the first one, the contract sex is the second feature by the adjustment of administrative law rules contractual relationship, to seize the essence of the problem, otherwise the forest for the trees.

Second, the public law model relative to the other two models in terms of comparative advantage with private mode compared to the advantages of public law model is mainly reflected in two aspects: First, more competent supervisory authority, [31] protection of rights, balancing public and private interest tasks. law adjustment of administrative activity is a contractual relationship supervisory powers, protection of rights, balancing public and private interests [32] the process of public law rules have been more competent, especially China is still in the early stages of the rule of law, independent of the executive unauthorized access to administrative contract authority is not uncommon, damage people's rights through administrative contract situation is not uncommon, with "improper link" undermine the very principle of price paid is not uncommon, the need to monitor public authority public law rules protect private rights, balancing public and private interests, and due to the lack of appropriate rules of private law mechanisms incompetent force. two is better suited to adjust interwoven together public and private elements of the administrative contract issues in private mode, based on both the administrative act has never force [33] law rules on the adjustment of administrative contracts is limited to review of its ineffectiveness, in addition it should be respected, so that the administrative body stand under special protection of the state, over the right configuration aggravated sexual inclination, while the administrative proceedings right tilt of configuration and administrative procedures exactly reverse, ensuring the rights and obligations of the structure and pattern of overall balance through administrative proceedings for administrative contract disputes in the examination of the legality of administrative acts at the same time, be resolved relationship with intrinsically administrative contract dispute. [34] In short, for the fusion of two kinds of administrative and contractual elements of administrative contracts, within the framework of its public law disputes can be completely resolved within the framework of private law only partially resolved. Split mode is a contractual administrative contract elements and elements separated from administrative and contractual issues related factors adjusted by the private law, and administrative issues related to the elements of law adjustment Although this approach can be seen as a way to administrative contracts Embed the efforts of our current legal system, however, is the contractual elements of administrative contracts and administrative integration of elements, rather than simply adding spell from an organism stripping out administrative features or contractual elements unimaginable This Procrustean processing mode, no doubt in solving some of these problems at the same time lead to more problems, [35] while in the simplification process becomes more complex the problem, should be encouraged.

Third, oppose the use of public law mode to adjust administrative reasons contractual relationship is not established. Grounds for objection can be summarized in: First, the contract is exclusively private law legal technicalities, and the second, more conducive to private mode protect people's individual interests, Third, the current administrative procedures, administrative relief system mode is not compatible with the law, which can not be established for three reasons, first, the contract does not belong to private law. "contract law is not only a form of private law, but also public law legal forms. "[36] is essentially a swap contract, both the exchange of economic interests may be, it could be political, social or other benefits in exchange, it can be adjusted by private law, may also be adjusted by public law. That kinds of contracts that have exclusive private law perspective, there is no reliable basis Secondly, public law rather than private mode mode is more conducive to the protection of people's self-interest model compared with private law, public law model is not only to protect the interests of parties to the contract, and the protection of three of the legitimate rights and interests, not only to protect the economy, personal property rights and protection of administrative, political and social rights and interests, not only to protect the people immediate, and protect their long-term interests, fundamental interests; protects not only practical interests, and protection. " reliance interest. "Accordingly, the adequacy of protection from the point of view, public law model is higher than the degree of protection of private law model. Finally, because the current system is incompatible with the public law model of public law model is tantamount to negating unworthy. Administrative Legal System Contract has not been established, therefore, the discussion of the relevant issues should stand on the legislative point of view, consideration should be how to fill, modify, improve relevant legal system, but can not stop at the barrier in front of the existing system.

Fourth, through the adjustment of administrative law contractual relationship model is the administrative and judicial practice of adopting the general practice in administrative practice, administrative contracts as an official document of the State Council and the administrative planning, administrative guidance, administrative licensing and other administrative acts in parallel with behavior [37] In some places administrative procedure legislation (eg regulations >> << Hunan Province administrative procedures and even be clearly defined in the judicial practice, the Supreme Court on the implementation of << <PRC Administrative Litigation Law> Interpretation of Several Issues >> actually uses a broad concept of administrative acts, [38] the behavior of the parties are satisfied that the person its scope, and thus satisfied the administrative contract disputes the jurisdiction of the administrative trial who .2004 Supreme Court issued << cause of action on regulating the administrative case notification >> to "administrative contract" clearly administrative cause of action as a class. << >> 2007 Supreme Bulletin No. 4, published "Daqing City Real Estate Development Co., Ltd. and amplitudes Daqing Municipal People's Government debt disputes ", the case from the civil contract with the distinction between administrative contracts angle, to further clarify the administrative contract shall be governed by public law referee rules.

Fifth, through the adjustment of administrative law contractual relationship model is a more common practice in civil law countries. Germany, France, Japan and other countries has been true but even in non-English civil law, although by the ordinary courts administrative contract case, but the court When the hearing also according to whether the contract involves the management or administration of public regulation to determine the applicability of judicial review. [39]

Third, the Chinese legal system, administrative contract system and content

China bred from the German administrative law administrative law doctrine originator Otto Mayer modeled on the civil law tradition of administrative law theory due to lack of practical experience, and without reference to the subsequent development of the theoretical system (in particular the right of the part which went high in Construction is still adhere to administrative legal relations are power relations, meaning constant state of dominance ranks unilateral view that the "State shall not enter into a contract with a private", [40] so that its institutional arrangements and structures can not cope with the social demands - especially in today's The so-called "official" China partnership Times - legal reform and innovation and thus have to be compatible with the legal system of administrative contract tasks.

The author believes that a more complete legal system of administrative contract, including the main system, the right system, the behavior system, the responsibility system and relief system in five areas.

(A subject system

The subject is the first element of the design of the body concerned with the shaping of the entire system. Administrative contract system by the main body types, the main qualifications and legal status of three main aspects of the composition.

First, the main type of system. Administrative contracts may have two or more parties, but as the basis for the relationship between the two sides is always the subject, can be summarized as the administrative body and administrative body, administrative body and administrative counterpart, non-executive and non-executive body main three types:

First, the administrative body and administrative body. [41] can be divided into two situations: First, the administrative body not affiliated. No affiliation between the administrative body, to achieve administrative purposes, may conclude administrative services contract, administrative assistance contracts, administrative boundaries agreements, administrative law enforcement cooperation contracts. Second, there is the affiliation between the administrative body. affiliation means lower administrative body has the qualification of independent derogation (and even in some cases the loss of , but this is relative, because between the upper and lower administrative body exists objectively decentralization [42], even if they are under the administrative body has relatively independent qualification, the meaning can be expressed as relatively independent, and therefore have higher administrative the main conclusion of the administrative contract of space. [43]

Second, the administrative body and administrative relative person can also be divided into two situations: First, the administrative body within the administrative areas of public servants and their respective administrative contracts between, two administrative areas are outside the administrative body and the administrative counterpart between the administrative contract for administrative contracts generally negative attitude of some civil law scholars, that "administrative contract both parties must be granted administrative organs or executive power bodies (such as agencies, industry associations," [44], Therefore, the administrative body and can not be concluded between the executive relative administrative contract. This view is mainly based on the "administrative body and administrative relative person can only conclude private law contract," the stereotypes, there is no scientific evidence as support.

Third, non-administrative body with non-administrative body There are two diametrically opposed views: Tong said that the parties to the contract administration, at least one side is the administrative body, while another view is that non-administrative body can also be established between administrative contract. merits and demerits, it is difficult to draw conclusions - even in relatively well-developed system of administrative contracts Germany, France and other countries not no doubt about this. [45] In my opinion, can be discussed from two aspects: First, the practical level on our executive and administrative body, including laws, regulations, rules authorized organizational, administrative contracts as a form of administrative law on the rights and obligations desirable, of course, by the executive authorities and the laws, regulations, rules outside the organization has authorized management of public affairs The main conclusion of other functions, thereby forming a non-administrative contract between the administrative body. [46] The second is focused on the future, assuming that the development of theory through administrative body will have a public affairs management functions other subjects who satisfied its scope, then the non-executive administrative contracts concluded between subjects can do? should say that, in principle, does not work, it is not without exception. Exceptions can be divided into non-formal administrative contract between the administrative body and substance between non-administrative body The administrative contract categories. formal non-administrative contract between the administrative body there are two cases: where a non-administrative body as the chief representative of the main administrative body with another non-contract concluded, [47] Another is Administrative contracts for non-administrative body is not really a non-administrative body, the "camouflage", "avatar", "puppet" of the state has a high level of transparency, so that ordinary people a single glance what they do behind the act should be directly attributable to its The real protagonist, that the administrative body. [48] is essentially a non-administrative contract between the administrative body involved in affairs with a high administrative areas. [49] as long as the contract relates to the field, regardless of whether the parties have administrative body, are considered to belong to the administrative contract.

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Second, the main qualification system. Main qualification is the main administrative contract conditions need to have, where those who have the necessary conditions for eligibility subject. Administrative body as an administrative body needs to meet the conditions of the contract are: ① administrative rights and obligations of the contract related matters within the jurisdiction of an administrative body. civil contract entered into by the parties beyond the scope of the contract in principle valid, [51] In contrast to this, beyond the jurisdiction of the conclusion of the administrative affairs in principle the contract invalid. ② own administrative body on matters covered room for discretion, or so-called "disposal room." only has room for discretion of the administrative body whose activities have a choice, and when discretionary space is compressed to zero, administrative activities are no longer optional, they lost the qualification to conclude administrative contract . administrative relative person as an administrative body needs to meet the conditions of the contract are: ① with administrative rights on the capability and capacity. Rights ability is to become the rights and obligations carrier, behavior is the ability to exercise their rights according to their own behavior and commitment obligations. ② compliance with the law and administrative body established by law and other conditions.

Third, the legal status of the body system. Chief executive body of the contract is the legal status of the parties to the contract specifications in the legal relationship between the administrative contract position, it is used to indicate the extent of the rights and obligations accordingly. One view is that there is administrative contract in the area of ​​administration, the nature of the relationship is a form of administration, rights and obligations of the parties are not on the other, so the two sides nor the status of equality at all. Some scholars even believe that the equality of the dominant position of the parties is to distinguish between administrative contracts and civil contracts important criterion. According to another view, [52] is the nature of the contract agreement, and agreeable legal status based on equality between the two sides if the legal status inequality, one will be able to impose its will on the other, and this is mandatory rather than contract. Strictly speaking, these two views are biased. administrative contract can be divided on other administrative contracts [53] and unequal administrative contracts [54] are two types, the different types of administrative contracts of their rights and obligations corresponding to different degrees, legal status and thus also different. preceding two views clearly aimed not only other administrative contracts for this purpose alone, in recent years in the more developed system of administrative contracts in France and some other Western countries, does appear to equalize The thought and momentum, but "equal" tendency is not equal universal "equality", which advocates insufficient administrative contract unequal legal status of the body should be completely equal. Moreover, the administrative contract is fulfilled administrative contracts, as a means to achieve the public interest, the main parties, although the legal status of full equality values ​​commendable and yearning, but in the field of administration often does not help or even hinder the administrative purpose and realization of public interest Thus, the author argued that the unequal administrative contract, the administrative body should be allowed between the executive relative importance according to factors such as charity to maintain a line with the principle of proportionality (necessary and appropriate, proportionate unequal legal status of state.

(Two rights regime

The role of the right system configuration rights. Rights configured in two ways: [55] One is institutionalized manner or regular manner, and the other is an equitable manner or way of cases, compared with the latter approach is more general rules do not pay attention , too much affected by the specific facts of a particular case or so, it is not easy to produce in general, to determine the legal concept of rights and rights of expectations, and the rights of institutionalized configuration to the "reasonable certainty showed samples of a predictable" [ 56], so the practice of administrative contracts for the current China urgently needed.

Administrative contract rights regime is the core issue as the main configuration rights. [57] and other administrative contract for both parties because of considerable strength, the goal is also in the same direction, the configuration without special while never equal right configuration for administrative contract the one hand, to consider how the objectives of administrative relative person plus total goals for the administrative body to mobilize the enthusiasm of the administrative counterpart, the executive body of the target through administrative relative person's behavior is achieved, it is necessary between the two configurations contractual rights and obligations, in order to satisfy the principle of economic equilibrium administrative counterpart utilitarian needs, but by this advance public welfare, on the other hand, also consider how to ensure that the administrative contract is expected to achieve a specific administrative purposes, and to avoid misalignment other administrative contracts drawbacks that may occur, such as a "betrayal of public power," or the use of public power oppress the relative administrative contract, therefore it is necessary to configure the administrative between rights and obligations of the administrative body that has led the administrative contract , while constrained by the Administrative Procedure Act. [58] administrative body as a party to the contract with the management of public affairs functions of the two identities mixed stakeholders, as well as consequential contractual rights and administrative rights of the blend, so unequal administrative contract showing overall configuration of the pattern right tilt. [59]

Contractual rights mainly as follows: ① on whether to enter into contracts and contract administration and so have some specific content option. [60] ② administrative relative person has under its consideration paid to obtain the corresponding right to require the administrative body promises (such as preferential the right to have the administrative body under the contract requirements are relatively artificial or not certain behaviors rights. ③ due to unforeseen significant change of circumstances, such as in accordance with the original contract unconscionability, the other party may request the appropriate adjustments to the contract content, such as can not be adjusted the right to terminate the contract.

The administrative body, its administrative rights include: ① the administrative performance of the contract the right to command, inspection and supervision. [61] ② purpose in conformity with the contract and maintain economic balance payments under the premise of the right to unilaterally change the content. ③ as prevent or eliminate the need for significant loss of public interest, by appropriate justification and pay reasonable compensation, the right to unilaterally terminate the contract. ④ When unforeseen material change of circumstances, such as the relative who according to the original contract unconscionability, the administrative body for the maintenance of public , the right to compensation relative loss, ordered to continue to fulfill its obligations under the original contract. ⑤ for non-performance of contractual obligations administrative relative person, legally enforceable and subjects to punishment. ⑥ content of the contract is not clear in the administrative or the existence of differences in the case the right to interpretation. The administrative relative person, its administrative rights include: ① administrative participation. ② right to know, in particular, the administrative body for its unilateral right to request changes to the behavior of the reasons to terminate the contract. ③ statement defend themselves, especially the right to request an administrative decision affecting an important interest in hearing. ④ entitled to receive the necessary guidance and assistance. ⑤ right to require the trust to protect their rights and interests. ⑥ charity for maintenance or administrative body in the exercise of administrative contract relationship with the necessary administrative contracts directly associated with public power, resulting in administrative relative person significant increase in the performance of obligations under other unexpected expenses or loss of the right to demand compensation for their losses administrative body. ⑦ an application for administrative reconsideration and administrative litigation rights. ⑧ When the administrative body illegal violations of their rights, are entitled to compensation .

(Three Behavior System

Administrative contract is a mutual administrative legal acts, as well as with civil legal acts compared to unilateral acts of administrative law, the research is still as short board. Administrative contract established behavioral system consists essentially of behavior, behavioral effect, act effectively, behavioral effects, behavior eradication other aspects.

The establishment of administrative contracts behavior refers to administrative contracts meet certain conditions be deemed to exist or have administrative contract objective qualitative requirements, it means that the process of administrative contract completion. Administrative contract line in response to different types and competitive contracting, mandatory contract, Consultative Parties and other ways of the points made (eg administrative settlement contract shall be concluded by negotiation rather than the other way), to be followed told the hearing, confirmed that the signing of the reasons such as procedural system of administrative acts established elements of the contract are two general and special two aspects. speaking only general requirements, including the following items: ① the main elements, that is, except there are special circumstances permitted by law at least one of the Contracting by the administrative body. [62] ② underlying elements that have related to administrative transaction subject (matter or behavior. ③ content element, which has a content of official duties. ④ objective elements, namely the creation of administrative law with the rights and obligations of effect meaning. ⑤ meaning of that element, which has a consistent meaning of that. ⑥ form要件,即具有固定合意之载体.不具备成立要件的行政合同行为被称为行政合同行为不存在或假行政合同行为、非行政合同行为.











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即便再不敏感的学者,似乎都能留意到行政法正在全球范围内发生一场结构性的变革.英国学者宣称:"在一个混合式行政的时代,在一个对公权力和私权利的创造性相互作用极其依赖的时代,合同乃行政法之核心." [76]中国学者认为,新行政法的特征是"公中有私、私中有公".[77]行政合同之建制,既是因应这个变革的行动,也是革故鼎新的结果.而经此推动治理方式之改良,政府角色之校正,公共福社之增进,亦非不能设想.

在成文法国家,由司法机关创制法律解释性规则以"弥合法律织物的漏洞"、"熨平法律织物的褶皱"固然作用甚巨,但正如新分析实证主义法学创始人哈特在分析法律的概念时所归纳的,法律是"原生规则"(primary rules和"派生规则"(secondary rules的结合,后者虽仰赖司法,但前者则倚仗立法.对于我国行政合同立法来说,社会需求明显而巨大,实务和理论准备工作亦颇有基础,时机已经成熟,宜尽速开展.首选方案是在统一的行政程序法典中就行政合同的有关规则与其他行政行为一并规定.但虑及行政程序法典的出台尚无时间表,加之立法机关对行政合同某些问题或仍存疑,作为次选方案,可由国务院制定<<行政合同条例>>,先行先试,以观后效.而与之关联之行政复议、行政诉讼等制度亦有相应修订之必要,以无碍于行政合同法律制度的形成.[78]


[1]"正是程序决定了法治与恣意的人治之间的基本区别."美国大法官William O.Douglas的法谚可资佐证."Justice William O.Douglas's Comment in Joint Anti-Fascist Refugee Comm. v. Mcgrath", See U-nited States Supreme Court Reports(95 Law. Ed. Oct. 1950 Term,The Lawyers Co-operative Publishing Company, 1951, p.858.



[15]Val. Hoffmann-Riem/Schmidt-Aβmann(Hrsg.,Konflikt-Bewaltigung durch Verhandlun-gen, 1990,S. 5.

[17]Vgl.Schmahl,Der verwaltungsrechtliche Vertrag: Ein Weg zur Burgernahe,VR1984,S. 308ff.






[29]当然,在德国,即便在相关法律规范已经存在数十年之久的今日,仍有部分学者提出对行政合同的怀疑,认为行政合同与民事合同无区分之必要.但这种意见已经日益式微.参见GunterPuttner,Wider den Offentliche-rechtlichen Vertrag Zwischen Staat und Burger, DVBI 1982,S, 122ff.

[32]在所有的政府合同中,都需要在公共利益—即正当使用纳税人所纳税款和确保公法政府合同制度的正当性(integrity—与政府订立合同的另一方当事人之间的利益之间做出平衡.参见(美Daniel J. Mitterhoff:"建构政府合同制度—以美国模式为例",杨伟东、刘秀华译,<<行政法学研究>>2000年第4期.




[39]Cf.PPDraig,Administrative Law,Sweet&Maxwell, 1994,pp.567-568.

[40]Mayer,Zur Lehre vom oeffentlich-rechtlichen Vertrage, AOEV3,S. 42(1888,zitiert nach Cathrzn Correll,Problemreiche und Moglichkeiten des offentilich-rechtlichen Vertrags, DOEV 1998,S363(366.


[43]有一种源于法国的观点(在我国也有人主张认为,一个公法人不能同时表达两种意思,将同属于一个公法人的机关间合意视为行政契约无异于承认有所谓自己与自己缔结的"单人契约"(B. Del-Gros, L'unite de lq personnalite juridique de 1' Etat,Paris,LGDJ,1976,p83 et s.,cite par L. Richer, op,cit. ,p.ll..然而,这种严格立场与行政实务之发展不尽相符.学者亦指出将缔约能力与法律人格连结在一起,无疑是受到私法上"行为能力"概念的影响,在公法范畴里,应当由"权限"概念作为最重要的概念.换言之,只要享有法定权限,即可在权限范围内表达意思,缔结行政合同.参见陈淳文:"公法契约与私法契约之划分",载台湾行政法学会主编,见前注[21],页148.

[45]德国实务中承认私人间行政合同的情况,比如根据<<建设法典>>第110条的规定,需用土地人(私人与拟被征收土地的所有人,在征收机关的组织下,就土地征收事项达成协议,又如根据<<德国水利法>>第95条的规定:"维护水道之义务,经高等水利机关之同意,得以协议之方式由他人承受,发生公法效力."(有关争议请参阅Alfons Gern , Dertrag zwischen Praten uber offentlichtlich Berechtigungen undVerpflichtungen, 1977, passim在法国,根据王名扬先生的介绍,例外情况下,非行政主体之间也可成立行政合同,例如公私合营公司与建筑企业签订的高速公路建筑契约和国有公路建筑契约,私人作为公法人的代理人和其他私人所签订的契约(参见王名扬:<<法国行政法>>,中国政法大学出版社1988年版,页185

[47]法国称之为"委任契约"(le contrat de Mandat

[48]Chen chwen-Wen les situations transparentes en droit administratiffrancais,Lille, Presses Univer-sitaires du Septentrion 2001,pp.179 et ss.




[56]See Benjamin Nathan Cardozo,Selected Writings of Benjamin Nathan Cardozo,Fallon Publica-tion, 1974,p. 52.

[57]哈弗法学院朱迪•弗里曼(Jody Freeman教授指出:"契约的兴起与其说是昭示了政府的撤退,还不如说是国家在治理中的角色的重新配置."弗里曼,见前注[25],页497.






[68]有人将此总结为11种情形,可资参考.具体为:①行政主体与无行为能力的公民个人缔结契约的.②行政机关逾越事务管辖权或专属管辖权而缔结契约的.③行政主体与不具备行政法规范所规定的特别条件或资格的私人缔结契约的.④行政机关以欺诈、胁迫方式缔结契约的.⑤行政机关与私人恶意串通缔结契约的.⑥契约内容对任何人均属不能实现的.⑦契约之履行构成犯罪的.⑧契约内容违背公序良俗的.⑨契约形式不符合行政法特别规定的.⑩契约方式之采用违反明确的禁止性规定的,⑩契约具有其他明显且重大违法情形的(蔺耀昌:<<行政契约效力研究>>,法律出版社2010年版,页119 .


[71]王克稳,见前注[19],页159- 174.



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