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

[Text]

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.
行政合同行为的生效是指已经成立的行政合同行为在符合特定条件时开始产生全部或部分法律效力.行政合同行为的生效容易与行政合同行为的有效混淆在一起,区分二者的要点是:生效是程序上的概念,有效是对实体的判断,生效应是一个过程,有效则是一种状态,生效侧重于事实判断,有效侧重于法律价值判断,生效指向行政合同行为发生法律效力的时间问题,有效指向价值考量后的定性问题,生效的对应概念是不生效,有效的对应概念是无效.行政合同行为生效后,也会因不具备有效要件,依具体情形而溯及既往或非溯及既往地失去全部或部分效力.行政合同行为的生效要件包括:①前提要件,即行政合同行为业已成立.②形式要件,即行政合同当事人签字或者盖章.③特殊要件,即行政合同附款所设定的延缓条件成就或始期届至,行政合同损及第三人权利的,得到第三人书面同意,行政合同的订立需其他行政主体的批准、同意或会同办理的,已经取得批准或同意.[63]④消极要件,即行政合同行为无明显且重大违法之情形.

行政合同行为的有效是指对已经成立的行政合同行为认可其对相关人具有相当于法律的效力.[64]行政合同行为的有效要件包括:①主体要件,即主体适格.[65]②标的要件,即标的确定并具有履行的可能性.③内容要件,即内容不违反法律及公共利益.④意思表示要件,即意思表示自愿真实.⑤程序要件,即符合法律规定的程序.⑥形式要件,即符合法律规定的形式.[66]

依法成立的行政合同,对当事人具有法律约束力,当事人不得擅自变更或解除合同,行政合同生效后,当事人应当按照约定履行自己的义务.由此可将行政合同行为的效力分为行政合同行为成立后的法律约束力与行政合同行为生效后的合同效力.行政合同行为成立后的法律约束力主要包括:①存续力,即行政合同行为一经成立,非有法律上之原因,得以不可争议地以及不可变更地持续存在.②既决力,即行政合同行为成立后,所有主体都应当尊重,并以其作为其活动的事实要件,行政主体在后续程序中不得予以规避或为实质变更,其他主体不得作出与之相左或相冲突的行为.③协作力,即在行政合同行为成立但未生效的情况下,当事人负有促使其生效的义务,而不能消极作为或阻碍其生效.行政合同行为生效后的合同效力主要包括:①请求力,即当事人根据法律规定或约定直接向对方请求为或不为一定行为的效力.②实现力,即强制义务人履行合同以实现行政合同目标与内容的效力,该效力是当事人经合意将行政合同交付执行而获得的,[67]但依法律规定或所涉事项之性质(如行政合同之履行直接关系到公众不可或缺之公共物品的供给时得由行政机关直接行使强制执行权的不在此限.

行政合同行为的消灭是指行政合同行为因效力的终止而使其在法律上不复存在.行政合同行为消灭的情形包括:①因无效而消灭,即存在严重且明显瑕疵[68]的行政合同行为因自始无效,经有权主体宣告或当事人直接"无视"而消灭.[69]②因撤销而消灭,即存在瑕疵的行政合同行为因存在瑕疵,经有权主体撤销而消灭.③因解除而消灭,即已经生效但未消灭的行政合同,可基于当事人单方或双方一致的意思表示而解除,从而消灭.[70]④因实现而消灭,即无瑕疵或有瑕疵但未被撤销的行政合同行为因内容得以实现或付款期限届满、付款条件满足而自然失效.

(四责任制度

责任制度规范的是因违反行政合同的约定义务、附随义务以及法定义务而强制行为人承受的法律负担,它与权利制度、行为制度并立为行政合同法制之本体性制度,但也最易被忽视.行政合同责任在内容上由义务、归责和负担三部分组成,在结构上是顺次构成的立体关系.

行政合同责任根据不同标准可分为多种类型:①根据承担责任主体之不同,可分为行政主体责任与行政相对人责任.②根据责任准据之不同,可分为违法责任与违约责任.③根据责任性质之不同,可分为缔约责任、行政合同无效责任、有效行政合同的违约责任、行政合同中的侵权责任、后行政合同责任.④根据所适用法律之不同,可分为民事责任、行政责任和刑事责任.

严格地说,不同类型的行政合同责任,其归责原则、负担内容和责任构成大相径庭,不宜笼而统之地概括.限于篇幅,本文仅对行政主体的违约责任、侵权责任、公平责任和担保责任做一分析.第一,违约责任.违约责任的构成要件是:①存在违约的事实.②对违约存在过错.③违约损及对方合法利益.行政主体承担违约责任的方式包括继续履行、解除合同、赔偿损失等.第二,侵权责任.侵权责任的构成要件是:①行使了公权力.②公权力的行使具有违法情形.③相对方合法利益受损.④违法行使公权力行为与损害结果之间具有因果关系.行政主体承担侵权责任的方式包括停止侵权、返还财产、恢复原状、金钱赔偿、消除影响、恢复名誉、赔礼道歉等.第三,公平责任.公平责任的构成要件是:①履行合同中发生了不可预见的情形.②行政相对人因不可预见的情形遭受重大经济损失.③相对人所受之损失不可归责于双方当事人.[71]第四,担保责任.担保责任的设置是为了防止行政主体通过行政合同转嫁其责任,内容主要包括:①给付不中断的担保责任.②维护与促进竞争的担保责任.③持续性的合理价格与一定给付质量的担保责任.④权利保障义务及国家赔偿责任的承担.[72]

(五救济制度

救济制度的作用在于实现权利、落实责任、化解纠纷,它包括非诉救济和诉讼救济两方面的内容,[73]其中处于主体地位的是行政仲裁制度、行政复议制度和行政诉讼制度.

行政仲裁主要适用于内部行政领域的行政合同纠纷,适例为行政聘任合同所产生的争议,可根据<<公务员法>>第100条、<<劳动人事争议仲裁办案规则>>第2条的规定向人事争议仲裁委员会申请仲裁.[74]行政复议和行政诉讼主要适用于外部行政领域的行政合同纠纷.内部行政领域行政合同纠纷,涉及相对人重要权益的,也应逐渐突破"特别权力关系"的理论,允许相对人通过行政复议和行政诉讼等途径寻求救济.[75]

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四、中国行政合同建制之展望(代结语

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]

[作者简介]
江必新,法学博士,最高人民法院副院长.

[Comment]
[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.

[2]中共十七大报告指出:"坚持国家一切权力属于人民,从各个层次、各个领域扩大公民有序政治参与,最广泛的动员和组织人民依法管理国家事务和社会事务,管理经济和文化事业",并将"扩大社会主义民主,更好保障人民权益和社会公平正义,公民政治参与有序扩大"明确作为实现全面建设小康社会奋斗目标的新要求之一.
[3]梁漱溟先生说:"文化非别的,乃是人类生活的样法."参见梁漱溟:<<东西文化及其哲学>>,商务印书馆1922年版,页24.

[4]<<说文解字>>:"契,大约也."<<汉书>>颜师古注:"约,要也,谓言契也."
[5]严格来讲,行政合同与行政契约是不完全相同的两个概念,但本文为论述方便,依学界通常做法,不作区分.
[6]包括合意的表现形式.
[7]张维庆(国家计生委主任:<<关于规范计划生育合同管理的讲话>>,2002年8月7日国家计划生育委员会办公厅转发.
[8]宋华琳:"市政公用事业特许契约中的退出机制",载余凌云主编:<<全球时代下的行政契约>>,清华大学出版社2010年版,页56.
[9]梁慧星:"讨论合同法征求意见稿专家会议上的争论",<<法学前沿>>第二辑,法律出版社1998年版.
[10]王利明:"合同的概念与合同法的规范对象",<<法学前沿>>第二辑,法律出版社1998年版.
[11]余凌云教授认为这是学者们"身处其境,却似在梦寐之中,不敢确认这个实在,更不敢触摸这个实在!"余凌云主编,见前注[8],页2.
[12]这是学界没有论及行政合同起源问题的根本原因.
[13]参见应松年主编:<<行政行为法—中国行政法制建设的理论与实践>>,人民出版社1993年版,页594,刘莘:"行政合同刍议",<<中国法学>>,1995年第5期,孙笑侠:"契约下的行政",<<比较法研究>>1997年第3期,余凌云:<<行政契约论>>,中国人民大学出版社2000年版,页3-4.至于计划体制下,根据指令性计划签订的经济合同是否属于行政合同的范围,争议较大.应松年主编,同上注,页591.

[14]应松年主编,见前注[13],页594.
[15]Val. Hoffmann-Riem/Schmidt-Aβmann(Hrsg.,Konflikt-Bewaltigung durch Verhandlun-gen, 1990,S. 5.

[16]行政决定则因受制于"无法律即无行政"原则而在该功能上有所逊色.
[17]Vgl.Schmahl,Der verwaltungsrechtliche Vertrag: Ein Weg zur Burgernahe,VR1984,S. 308ff.

[18]孙笑侠教授认为,行政合同的本质,既是政府用来加强经济干预的手段,又是公民对政府权力进行限制的方式.孙笑侠,见前注[13].

[19]参见于安:<<降低政府规制—经济全球化时代的行政法>>,法律出版社2003年版,页138,王克稳:<<政府合同研究>>,苏州大学出版社2007年版,页25.
[20]杨解君教授认为行政合同所能承载的理念包括平等理念、自由意志理念、诚信理念、义务责任理念以及和解理念,这几方面可以总称为契约理念.参见杨解君:<<中国大陆行政法的革命—契约理念的确立及其展开>>,元照出版公司2009年版.

[21]根据德国和我国台湾地区的经验,凡属于复杂、非典型的案件,须倚重当事人知识与经验之领域,须取得当事人之协助或配合以完成执行之领域,及具有不同法律关系之领域,宜以行政合同为之.参见黄锦堂:"行政契约法主要适用问题之研究",载台湾行政法学会主编:<<行政契约法与新行政法>>,元照出版公司2002年版,页33-34.

[22]余凌云:"对行政契约的三点感悟",载余凌云主编,见前注[8],页5.
[23]由此导致不乏契约观念的张扬和契约政策工作的不断尝试,但是作为一种持续应用和可予司法审查的契约制度却是罕见的.
[24](日南博方:<<日本行政法>>,杨建顺译,中国人民大学出版社1988年版,页64.
[25](美朱迪•弗里曼:"契约国家",载(美朱迪•弗里曼:<<合作治理与新行政法>>,毕洪海、陈标冲译,商务印书馆2010年版,页494.
[26]这种情况,在我国目前也现实存在,例如"由于深受国家改革开放方针和形象的影响,已经发生的水务、道路桥梁建设等合作型特许专营合同纠纷,极大地危及了国家利益的安全性,然而沿用的是民事合同制度的纠纷处理方式和思维观念,这是造成危及国家利益安定性的一个主因."于立深:"中国行政合同制度的实践与发展—透过行政合同判例和法律文书的观察",载余凌云主编,见前注[8],页41.

[27]该条规定:"房屋征收部门与被征收人依照本条例的规定,就补偿方式、补偿金额和支付期限、用于产权调换房屋的地点和面积、搬迁费、临时安置费或者周转用房、停产停业损失、搬迁期限、过渡方式和过渡期限等事项,订立补偿协议.补偿协议订立后,一方当事人不履行补偿协议约定的义务的,另一方当事人可以依法提起诉讼."
[28]关于<<国有土地上房屋征收与补偿条例>>第25条中规定的"补偿协议",有人认为属于民事合同,主要有两个理由:一是"行政合同"的提法没有法律依据,二是如果认定属于行政合同,"官告民"的纠纷在现有制度框架下解决不了.实际上,这两个理由都不能成立."行政合同"虽然还不是一个法律用语,但国务院和最高人民法院的正式文件里都已经使用了这个概念.另外,因为没有配套救济制度就不承认其法律属性,是逻辑上的本末倒置.笔者认为,首先要承认其行政合同属性,并据此推动行政诉讼相关制度的改革.在改革前,仍可通过"民告官"模式消化大部分纠纷(即行政主体如欲救济其权利,可在法律允许的情况下通过其公权力行为而"自力救济",从而把相关纠纷消解在既有的"民告官"模式中.

[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.

[30]黄锦堂:"行政契约法主要适用问题之研究",载台湾行政法学会主编,见前注[21],页16.
[31]如前文提到的相互串通损害公共利益的情形.
[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.

[33]既决力系指行政主体对有关事项作出决定后,应得到尊重,并以其作为裁决的事实要件,行政主体在后续程序中不得予以规避或为实质变更,其他主体不得作出与之相左或相冲突的决定或裁判.既决力包括跨程序拘束力、构成要件效力以及特定情形下的确认效力.

[34]根据<<若干解释>>第97条的规定,人民法院审理行政案件,除依照<<行政诉讼法>>和本解释外,可以参照民事诉讼的有关规定.这为通过行政诉讼一并解决行政合同纠纷提供了程序保障.

[35]"行政契约中的其他行为怎么办?尤其是那些与行政机关变更或废止契约的行为有着内在关联的行为,在诉讼中是否一并审查?要是审查,就很可能会审查到契约当事人是否存在先行违约的问题,这是否妥当?等等."余凌云:"论对行政契约的司法审查",<<浙江学刊>>2006年第1期.

[36](德赫费:<<政治的正义性>>,庞学铨、李张林译,上海译文出版社1998年版,页388.
[37]2004年3月22日国务院发布<<全面推进依法行政实施纲要>>,要求"充分发挥行政规划、行政指导、行政合同等方式的作用".2004年6月28日,温家宝总理在<<全面推进依法行政努力建设法制政府>>电视电话会议中再次重申:"对不需要行政许可但需要政府管理的事项,要强化间接管理和事后监督,充分发挥行政规划、行政指导、行政合同的作用."
[38]参见其第1条的规定.
[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.
[41]需要注意的是,行政机关或授权组织作为行政相对人与行政主体缔结的行政合同,属于行政主体与行政相对人之间缔结的行政合同,而不是行政主体与行政主体缔结的行政合同.此外,有一种观点认为,行政主体之间的合同不是行政合同,而是行政协定(参见应松年:<<依法行政十讲>>,中央文献出版社2002年版,页118-119.理由主要有两点:一是它不适用行政优益权并且不宜由法院管辖(刘莘,见前注[13],二是行政法学主要研究行政主体与行政相对人之间的权利义务关系,而行政主体之间的协议基本上不涉及或不直接涉及相对人的权利义务(参见应松年、杨伟东编:<<中国行政法学20年研究报告>>,中国政法大学出版社2008年版,页477.这个观点是否正确?笔者认为,不能以对错来认定,关键在于行政合同如何界定.按照通说,行政合同是以合同的形式形成行政法上的权利义务关系,自然可以涵盖行政协定.行政优益权是部分(而非全部行政合同所具有的特征,不能反过来作为识别行政合同的标尺.

[42]<<中华人民共和国宪法>>第107条第1款规定:"县级以上地方各级人民政府依照法律规定的权限,管理本行政区域内的经济、教育、科学、文化、卫生、体育事业、城乡建设事业和财政、民政、公安、民族事务、司法行政、监察、计划生育等行政工作."<<中华人民共和国地方各级人民代表大会和地方各级人民政府组织法>>第55条第3款规定:"地方各级人民政府必须依法行使行政职权."根据上述规定,法律、行政法规明确赋予地方人民政府的职权,县级以上地方各级人大及其常委会、县级以上地方各级人民政府不得擅自改变.这一点也为<<全国人民代表大会常务委员会法制工作委员会关于上级人大或政府是否有权将下级行政机关的职权上收的答复>>所重申.

[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.

[44]梁慧星:"中国统一合同法的起草",<<民商法论丛>>第9卷,法律出版社1997年版,页29-30.
[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
[46]例如社会行政主体缔结的行政合同.

[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.

[49]在法国,称为"国家的本质性任务"领域.目前判例所承认的国家的本质性任务领域仍围绕在有关国有道路的工程合同上.

[50]但需注意的一点是,就高度规制性行政业务之核心事项,一般认为不得成为行政合同的适用范围.
[51]最高人民法院<<关于适用〈中华人民共和国合同法〉若干问题的解释(一>>第10条规定:"当事人超越经营范围订立合同,人民法院不因此认定合同无效.但违反国家限制经营、特许经营以及法律、行政法规禁止经营规定的除外."
[52]王克稳,见前注[19],页32.
[53]主要在不具有隶属关系的行政主体之间签订.

[54]德国和我国台湾地区称之为"隶属契约"

[55]参见苏力:"'秋菊打官司'案、邱氏鼠药案和言论自由",<<法学研究>>1996年第3期.
[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.

[58]一般认为这只是大陆法系的特色,实际上这种认识并不准确.例如在美国,政府采购合同虽然与商业合同具有明显的相似性,但在许多方面也具有明显的特殊性,比如允许任意终止合同、当政府违约时限制私人承包商可以获得救济措施等.

[59]为保障公益,在不对等行政合同中进行权利倾斜性配置是必要的,但应以必要为限.是否必要,要以比例原则为标尺.

[60]"须经相对人同意的行政行为"是否属于行政合同?这类行为虽然行政相对人无选择内容的权利,但对是否作出该行为具有决定权,其意思表示在此时是与行政主体"等值"的,因此可应认定为行政合同之一种.
[61]但不得对当事人履行合同造成妨碍.参见<<湖南省行政程序规定>>第97条.

[62]私人之间成立行政合同仅为特例.
[63]特殊要件为不完全列举.
[64]行政合同行为的有效与行政合同行为的合法是不同的两个概念,合法性只是效力判断的一个基准而非全部基准,是进行判断的重要条件而非充分条件,效力判断并非一个在合法性与效力之间进行简单比照的过程.
[65]具体内容参见前文"主体资格制度"部分.
[66]在制定行政程序法典的国家和地区,一般都规定行政合同的订立以书面形式为原则,以法定的其他形式为例外.如<<德国行政程序法>>第57条,<<葡萄牙行政程序法>>(1996年第148条,我国台湾地区<<行政程序法>>第139条,<<湖南省行政程序规定>>第95条.

[67]<<德国行政程序法>>第61条规定:"契约当事人得于第54条第2句所称之公法契约中订明,自愿接受立即强制执行.上述情形,官署应有官署长官、其一般代理人或由具有法官资格或具有<<德国法官法>>第110条第1句要件之公职人员代表之."关于专业监督机关许可或同意之要求因过于严格,在德国已经被修该为专业监督机关之许可,只限于行政机关也自愿接受立即执行之情形.

[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 .

[69]无效行政合同行为已经成立,也即完成了从无到有的过程,因此也有消灭问题.
[70]单方解除的条件有:①因不可抗力致使行政合同不能履行的.②因法律法规的变更而使行政合同无法履行的.③契约当事人主观违约的.④为维护紧迫的公共利益而必须解除契约的.⑤法律法规规定的其他条件(蔺耀昌,见前注[68],页167.

[71]王克稳,见前注[19],页159- 174.
[72]参见许宗力:"论行政任务的民营化",载<<当代公法新论>>(中,元照出版公司2002年版,页606以下.
[73]我国台湾地区学理上早有"行政契约"的概念,但因实务上缺乏救济途径,而遁人私法.直至2001年<<行政程序法>>施行以来,行政契约才能普遍适用于各个行政领域.

[74]<<公务员法>>第100条规定:"国家建立人事争议仲裁制度.人事争议仲裁应当根据合法、公正、及时处理的原则,依法维护争议双方的合法权益.人事争议仲裁委员会根据需要设立.人事争议仲裁委员会由公务员主管部门的代表、聘用机关的代表、聘任制公务员的代表以及法律专家组成.聘任制公务员与所在机关之间因履行聘任合同发生争议的,可以自争议发生之日起六十日内向人事争议仲裁委员会申请仲裁.当事人对仲裁裁决不服的,可以自接到仲裁裁决书之日起十五日内向人民法院提起诉讼.仲裁裁决生效后,一方当事人不履行的,另一方当事人可以申请人民法院执行."人力资源和社会保障部<<劳动人事争议仲裁办案规则>>第2条第(二项的规定,"实施公务员法的机关与聘任制公务员之间、参照公务员法管理的机关(单位与聘任工作人员之间因履行聘任合同发生的争议"由仲裁委员会仲裁.

[75]关于内部行政合同的救济问题,可参见关保英:"论内部行政合同",<<比较法研究>>2007年第6期.
[76](英卡罗尔•哈洛、理查德•罗林斯:<<法律与行政>>,杨伟东等译,商务印书馆2005年版,页554.
[77]弗里曼,见前注[25],页5.
[78]包括确立人民法院在行政合同案件审判中的完全管辖权,允许行政主体起诉,允许调解之适用,修订"行政机关负举证责任"的规则,丰富裁判方式等等.

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