Research On Competitive Contracting Contract

Competitive contracting contract is a kind of agreement that is agreedupon through competitive method. In comparison with non-competitive contractingcontract, it is different not only on its method but also on its system design. Theemergence of competitive contracting contract is due to the introduction ofcompetitive factor, which is originated from its public characteristics. Due to theconsideration on principles as fair, freedom and integrity to the resources related topublic interests, the contract was introduced to realize its value in some areas. Sincethe public interests are involved, remedy to the interests to the third party is attachedgreat importance. The interests of the third party could be divided into manycategories, and could also be concurrent. Because of the above consideration, solutionto the problem should consider relevant methods of foreign countries and reform thepolicy step by step in combination of China’s actual situation.The thesis is divided into seven sections as one introductory, one conclusive andfive text chapters.In the introductory chapter, the following five parts are introduced:A. Background of the topic selection and value of the research. This partemphasized on the introduction of the initiative of research of competitive contractingcontract, and analyzed its theory and practical value.B. Dynamic analysis on domestic and international research. The analysis startsfrom its relevant platform and area, contracting method and interest of the third party,summarizes the direction and trend of the present research.C. Brief introduction to the research method and steps, andD. Declaration to the improvement and shortage of the thesis.In general analysis of the first chapter to competitive contracting contract, five parts are introduced, they are: definition of competitive contracting contract,look-back of the evolution of competitive contracting contract, relations betweencompetitive contracting contract and other relevant concepts, basic characteristics ofthe competitive contracting contract and conclusion of the chapter.In the first part, definition of the competitive contracting contract starts from thethinking of contractual freedom, analyses the competition as primary form of contract,explains the relation between contractual freedom and order control, and thenintroduces the essence of competitive contracting contract, which is the requirementof the introduction of the public interest, and interpret the representation ofcontractual just on contractual freedom.In the second part, the look-back the competitive contracting contract isdescribed respectively in the domestic and international development. For its domesticdevelopment, brief analysis and summary are give to the phases before and after theestablishment of new China. In the development of typical countries and internationalorganizations, the writer introduces the overview of US competitive contractingcontract, Japanese competitive contracting contract and contract of internationalorganizations.In the analysis of the third part on competitive contracting contract and itsrelevant concepts, the writer compares the relations between competitive contractingcontract and antitrust, anti-unfair competition and peremptory contracting. Thecomparison is carried out between the regulations and the interests represented by thethree systems, so that to compare the differences between them, and enhances theunderstanding of the meaning of competitive contracting contract.In the analysis of part four on the basic characteristics, the writer analyzes thecharacteristics on four dimensions. The first characteristics is that competitivecontracting contract shall be formal one, which is the balanced between fair andefficiency. The second is that it is a diversified uniform. The characteristic isoriginated from its diversified area covered, and its pursuance uniform underdiversification. The third is that it has many related parties. This is not only the requirement of free competition but also the requirement of fair contracting. The forthis that public interest is the main objective of the contract. This is the choice betweenfree contracting and contracting interest, also the unification of order control andpublic interest.Part five is the summary of this chapter.Chapter two discusses value, basic principles and application of competitivecontracting contract. This chapter is divided into four parts: value analysis ofcompetitive contracting contract, basic principles of competitive contracting contract,applicable areas of the competitive contracting contract and brief of the chapter.In the first part about value of competitive contracting contract, the writeranalyzes the value of general contract, and then introduced the unique value ofcompetitive contracting contract, examines economic and system value of competitivecontracting contract, clarified a misunderstanding to competitive contracting contract,denied the theory about low efficiency and discussed the balance between differentvalues of competitive contracting contract.In the second part about basic principles of competitive contracting contract, thewriter starts from the relations between competitive contracting contract and generalcontract, analyzes the application of equal principle, fair principle and principle offreedom, then find out the result of the special application principle of competitivecontracting contract, including detailed representation: non-discriminative nationaltreatment, general consideration of the equal, fair and open principles, informationsymmetry under honest principle and the whole process regulation.In the third part about application of competitive contracting contract, the writerintroduces the identification standard of its application areas, illustrates the standardon the basis of its requirement and the balance between free competition and moderatecompetition. Under this standard, the writer explains the applicable areas of thecompetitive contracting contract, including compulsory applicable area and volunteerapplicable area. The writer also briefly discusses a tuff problem, which is thedifference between administrative approval and competitive contracting contract. The forth part is a summary of the chapter.Chapter three is the analysis of about the contracting of competitive contractingcontract. This chapter is divided into five parts: analysis on contracting method oncompetitive contracting contract, process analysis of the contracting of competitivecontracting contract, contracting guarantee of competitive contracting contract,annexed liability of competitive contracting contract and summary of the chapter.In the first part about method analysis of competitive contracting contract, thewriter discusses from two dimensions, which are traditional contracting methodincluding bidding, auction and sale, and new contracting method including internetauction, electronic bidding. The writer also challenges contracting method ofcompetitive contracting contract, and briefly discusses it from two dimensions, theyare: whether the contractor has the right to create contracting method of thecompetitive contracting contract? Whether competitive negotiation is covered bycompetitive contracting contracting method?In the second part on the analysis of contracting process, the writer discussesestablishment steps on the basis of the general conditions of the establishment andeffectiveness of competitive contracting contract, illustrates general and specialconditions of the contract. The writer also discusses the problem about effectivenessfrom the dimensions as standard of effectiveness and flaw of the validity of thecompetitive contracting contract.In the third part about contracting guarantee, the writer explains value andrepresentation of guarantee policy, and problem and solution of the guarantee, solvesthe legitimacy problem of introducing guarantee into competitive contracting contract,raises the ideas as the introduction of guarantee in the process of contracting,reciprocal requirement of the guarantee and other considerations of the method of theguarantee.In the forth part about annexed liability of competitive contracting contract, thewriter analyzes the application problem of confidentiality as annexed liability, initiallystructures the confidentiality and publication policy of competitive contracting contract. Since it involves public interest and has clear characteristic of weak positionof the third party, the writer analyzes the necessity of supervision of the third partyand its evaluation mechanism, and then initially discusses the structuring of the thirdparty supervision.The last part is summary of the chapter.Chapter four is about the protection of the third party, which is originated fromthe tort in the competitive contracting contract. The chapter is divided into five parts:the involvement of the third party and tort to the third party; interest protection of thethird party with priority rights; interest protection of the third party within the samecompetition arena; solution to the tort to third party in the competitive contractingcontract; summary of the chapter.In the first part about the protection of the third party for the involvement andtort, the writer firstly has a introduction, discusses the definition of third party andapplicable regulations, then has a categorized research on tort to third party in theprocess of competitive contracting contract. The writer discusses it from thedimension of its legitimacy, subject and coverage. The writer discusses the tort to thethird party’s interest by two steps.In the second party about interest protection of the third party who has priorityright, the writer firstly introduces priority right into competitive contracting contract,explains the tort situations to the third party with priority right.In the third part about interest protection of third party of the competitor in thesame arena, the writer introduces the meaning of the third party competitor in thesame arena and value of the protection of the third party interest. The writer also liststhe situations of the tort caused to the third party competitor in the same arena.In the forth part about the settlement of concurrence to interest injury to thirdparty, the writer introduces the meaning of injury to third party interest, and thenanalyzes the concurrence situation to the third party in the competitive contractingcontract, and finally raises the settlement principle of the concurrence to third party inthe competitive contracting contract. The last part is the summary of the chapter.Chapter five is about the remedy to the third party interest in competitivecontracting contract. The chapter is divided into three parts: perfect remedy policy ofthe third party in competitive contracting contract; structure a reasonable litigationprocess after the tort to third party interest; summary.In the first part about remedy policy to the third party, the writer firstlyintroduces the policy system composed by the regulations in our country, includingregulations in the Government Procurement Law, Bidding Law, Auction Law andregulations in other laws. The writer also analyzes the remedy polices of othercountries and regions, and derives guides from them. In the analysis of this part, thewriter analyzes remedy polices of WTO, EU, US and Japan on the basis ofgovernment procurement. Finally, the writer recommends the way of perfectingremedy policy of our country and other details.In the second part about constructing a reasonable litigation process after tort tothe third party, the writer considers it from process design of administrative litigationand civil litigation, discusses the scope administrative litigation and civil litigationand their connection and harmony with each other. In the design of process design ofcivil litigation, the writer discusses the qualification of third party, evidence rule andlimitation of action.The last part is summary of the chapter.In the conclusive part of the thesis, the writer briefly discusses the legislationperspective of competitive contracting contract, including the harmony between thecompetitive contracting contract law and the applicable laws, and the structure oflegislation of competitive contracting contract law.