On The Distinction And Association Between Civil Contract And Administrative Contract

The relationship between civil contract and administrative contract has been debated in our country for a long time, but it has not yet formed a consensus. In this regard, there are great differences between civil law scholars and administrative law scholars. The civil law scholars advocate narrow down the scope of the administrative contract or even negate the concept of the administrative contract,but the administrative law scholars generally recognize administrative contract, and regard state-owned land use right transfer contract, government procurement contract, government scientific research contract, government concession contract, rural land contracting for management contract and many other types of contracts as administrative contract, which shows the tendency of a generalization of the scope of administrative contracts.The new enacted "administrative procedural law" and its judicial interpretation bring the disputes about the administrative organ violating the government concession agreement, land and house expropriation compensation agreement and other agreements into the scope of administrative proceeding for the first time. But it has not clearly defined the standard of administrative contract which made the relationship between civil contract and administrative contract even more confusing. It is not realistic to completely deny the concept of administrative contract, but it is also not very proper to expand the scope of the administrative contract too much. It is desirable and urgent to recognize the concept of administrative contract and clarify the distinction and association between it and civil contract.In addition to the introduction and conclusion, this paper consists of five chapters:The first chapter, the evolution and characteristics of civil contract. Contract in the legal sense originated in ancient Rome. The contract in Rome law was separated from the debt, and had experienced the development stage from oral contract, document contract, real contract to consensual contract. The strict requirements in the forms and types had gradually diluted and the consensus elements gradually highlighted. This shows that the initial form of contract is civil contract, the administrative contract does not have an independent historical origin.Thereafter, in civil law countries, following on the basis of Roman law and by adopting the relevant provisions of canon law, a concept of contract which has a core of consensus had been formed. The concept of contract in the Anglo-American legal system had beendeveloped from the contract lawsuit, with promise as its core. But as the transaction and consideration theory had constantly been challenged, the consensus theory was gradually being adopted. With the change of social economy, the classical contract, which viewed consensus as its core and had an abstract and current characteristics, could not meet the needs of reality and gradually declined. The modern contract has a diverse philosophical foundation,and regards the agreement, habits, good faith principle as well as the provisions of the law as sources of obligations, pursues win-win cooperation, emphasizes the flexibility and sociality of contract and are increasingly subject to public law. These typical features of modern contract have great significance for the scientific understanding of the relationship between civil contract and administrative contract. Since the founding of new China, the civil contract system of our country has experienced three stages: start-up and standstill period, recovery and development period, as well as mature and perfecting period, and the contract has gradually developed into an autonomous tool by means of planning. The "Government retreat,the market return" concept which highlighted in this development process should continue to adhere to.The contract in civil law of our country also picks the consensus theory. Article 85 of "General Principles of the Civil Law" limits the contract to the creditor's rights contract.Although article 2 of “Contract Law” can be explained in a broad sense, creditor's rights contract is still the main object. The contract in the future civil code should adopt the generalized concept, which can be defined as "the agreements on the establishment, alteration and elimination of the civil rights and obligations of the parties."The second chapter, the rise and development of administrative contract.The rise of the administrative contract is based on the transformation of the state function--the rise of the welfare and cooperative state, the change of the administrative paradigm--from order administration, management administration, centralized administration, unilateral administration to payment administration, service administration, democratic administration,cooperative administration and the division of public law and private law. In Anglo-American legal system, there is no strict distinction between public law and private law, so there is no concept of administrative contract. The developments of administrative contract in civil law countries are different and the system in France and Germany are the most representative legislations. France's administrative contract mainly exists in the field of public service, which is closely related to the concept of public law based on public service, the binary judicial system and the formation mechanism of administrative law based on case law. Germany takesthe administrative power as the core to construct the public law system, and the administrative contract is limited to the public power administrative field. The private economic behaviors of the administrative organs which is applicable to private law belongs to the category of private law. The administrative law of our country is developed around the administrative power, and the administrative contract system in Germany should be of more reference significance. On the concept of administrative contract, the contract signed between the administrative organs shall not be excluded, nor should the contractual purpose--administrative or public interest--be a component of the concept. We should draw lessons from Germany and China's Taiwan region, and define it as: "the agreement on the establishment, alteration and elimination of the rights and obligations of the administrative law between the administrative organs and natural persons, legal persons or other organizations, or between administrative organs." Such definition can not only correspond to the concept of civil contract, but also contribute to the effective distinction between the two.The third chapter, the distinction standard of civil contract and administrative contract.On the distinguish standard, the most typical legislations are France and Germany. In France,the distinction between civil contract and administrative contract is usually based on two standards--legal provisions and judicial precedents. Now, the French judicial precedents standard has been criticized and less applied, and the legal standard gradually plays the main role. In Germany and China's Taiwan region, there are contract's object standard which is the mainstream view, and contract's purpose standard, contract's subject standard, partners' main meaning standard and compound standard etc. In the contract's object standard, there are theories of normative fact, artificial specification, special law, power reservation,administrative task, prior order and so on. France's judicial precedents standard is not applicable, and its own is also facing changes, so it should not be used as our reference object.The purpose of contract and administrative prior rights which the scholars advocate are not suitable to be used as the standard of distinction. The purpose of contract, whether it is the purpose of the administrative management or public interest, is an uncertain concept, and it is easy to expand the scope of the administrative contract. Furthermore, the purpose of the contract should be investigated with the specific content of the contract, and should not be confused with the motivation of the contract. The standard of administrative prior rights should be abandoned because it pays too much emphasis on administrative privileges of administrative organs, which neither in accordance with the development trend of theadministrative contract, and China's decentralization reform strategy, nor conducive to the protection of the rights of the relative party. Our country should adopt contract object as a distinction standard, that is to say when the content of the contract involves the administrative organ's power or duties, or the citizen's rights or obligations in public law, it is the administrative contract. The contracts signed by administrative organs in the process of high power administration belong to administrative contracts and the contracts in private economic administrative process are civil contracts. The economic contract and administrative private law contract which the scholars put forward outside the civil contract and administrative contract can not be established in the concept. The so-called economic contract or administrative private law contract are essentially civil contracts. Therefore, the binary distinction between civil contract and administrative contract which use contract object as the distinguishing criteria should continue to be adhered to.The fourth chapter, the scope of application of administrative contract under the distinction theory. Due to different distinguishing standards, there are differences in the scope of application of administrative contract in different countries and regions. Even within the same legislation, there are disputes over the nature of some contracts. China's new "Administrative Procedure Law" brings the disputes about the administrative organ violating the government concession agreement, land and house expropriation compensation agreement and other agreements into the scope of administrative proceedings, but it did not clear the specific scope of administrative contract.The local government regulations and the administrative law theories have a tendency to expand the scope of application of administrative contract. According to the contract object standard, administrative contract should be limited to the field of high power administration, and the transaction contract in the private economic administrative process should be civil contract. Expropriation compensation agreement, birth controlling contract, civil servants' appointment contract, administrative commission contract, administrative guarantee contract and administrative settlement contract are administrative contracts. The contracts in private economic administration areas, such as government procurement contract, state-owned land use right transfer contract, government concession contract, rural land contracting for management contract, contract(lease)contract of industrial enterprises owned by the whole people, government scientific research contract,policy credit contract, teacher employment contract and so on, which are neither related to administrative organ's power or duties, nor to the citizen's rights or obligations in public law,and should belong to civil contracts. When analyzing the nature of the contract in the private economic administration, we can learn from dual-stage theory to distinguish the administrative sanction from the contract of the later stage and distinguish the contract from the legal authority of the administrative organ. Contracts and their associated administrative acts shall apply respectively to civil and administrative remedies path. As to the problems that may result in the contradiction between the courts, we can draw lessons from Germany and China's Taiwan area on the solution of the problem before, and also explore the establishment of civil litigation with incidental administrative action. Putting contracts in private economic administration in civil contracts would help to maintain the continuity and stability of the law,maintain the coordination of the internal system of administrative contract, maintain the uniformity of law application in the civil and commercial areas, implement the status of the country's status of civil subject, promote the development of international trade and protect the lawful rights and interests of the parties.The fifth chapter, the association between civil contract and administrative contract.While emphasizing administrative contract's distinction with civil contract, paying attention to its administrative attributes, we should also pay attention to its common attributes with civil contract, and highlight its contract nature. Civil contract and administrative contract have many commonalities in the principle of equality, principle of autonomy of will, principle of good faith, and the sacred nature of contract. In administrative contracts, the two parties' relationship are not only the relationship of command and obedience, but the rights and obligations of public law, and should follow the principle of equality. The connotation of the principle of equality of administrative contract should not only limited to the administrative organ's equal treatment to the counterparts, but also include the equality between the administrative organ and the relative person, which means the equality of subject qualification,equality of legal status, equality of rights and obligations and equal protection under the law of the both parties of the contract. The administrative discretion provides the legal basis and the existence space for the administrative contract freedom. But in administrative contract, the agreed standards shall not be less than the statutory standards, the agreed rights and obligations shall not exceed the statutory powers of administrative organs, and the stipulations of administrative contract should limit the discretion of the administrative organ. Excluding the application of the principle of good faith in administrative law because of the nature of administrative law and the destruction of the state control force is insufficient to take. Bothparties of administrative contract should be honest, trustworthy, well intentioned, and pursue the balance of interests. In addition, the sacred nature of the contract, and the recognition and respect for the administrative contract should be increased. Administrative contract should mainly apply administrative law. But when there are loopholes in the administrative law and similar provisions in the civil code, the application by analogy to the rules of the civil contract should be allowed without violating the basic principles of administrative law. The basic principles of civil contract, contract conclusion rules, rules of validity of contract, contract performance rules, contract termination rules, contract responsibility rules, contract interpretation rules and the rules of the civil special law all have spaces of analogy application.China's relief system of administrative contract is still flawed, and we can learn from civil contract relief mechanism to perfect it. In the non-litigation relief, we should pay attention to the function of negotiation and arbitration, and recognize the defects of administrative reconsideration in solving the administrative contract disputes. Furthermore, administrative prior rights should not be a mean of resolving disputes of administrative contract. In the judicial relief, a two-way relief mechanism should be established from the subject of prosecution, the scope of the case, the jurisdiction of litigation, the burden of proof, the way of trial, the form of judgments and other aspects.Our country should establish the exact boundary between civil contract and administrative contract with the contract object standard, and limit the administrative contract in the high power administration area. Only in this way, can the civil contract and administrative contract truly be distinguished, and can the trends of globalization of the world economy and law and China's decentralization trend be met. China's future civil code is not necessary to stipulate the government contract or administrative contract and the various contracts signed by the administrative authorities in private economy can be regulated by special legislations. With the increasing of the civil contract and the rise of the administrative contract, our country is entering into a contract society. While emphasizing on the the nature distinction of civil contract and administrative contract and their regulation of public law and private law, we should also emphasize on improving the ability of the parties to utilize contract and the spirit of contract.