Research On Right Of Administrative Body As Plaintiff In Administration Litigation Of Administrative Contract

The key point of this doctoral dissertation is that the administrative bodies are qualified to be plaintiff in administration litigation.In order to prove it, the dissertation starts from the challenge caused by the new amendment of Administrative procedure law. The contract of grant of land use right which had been regarded to be civil contract has been now resumed to be administration contract,and can be brought before the Court, but the problem is that only common people can bring administrative law suit before the Court, now the administration bodies need do so. This conflict shows that the current litigation system isn't suitable to the settlement of administrative disputes. The administrative contract would be still regarded to be Civil contract, This make great negative effect. The problem constitutes the background of this dissertation. This is the first chapter.The capacity of administrative bodes to bring administrative lawsuits means denying the current litigation system which based on administrative actions. The administrative contract is not belong to the scope of administrative actions. The essence of the administrative contracts is still a contract, which means the agreement of wills in both sides. In the administrative contract,both parties take the burden or obligations which is different from the other administrative actions, or we had better call it to be administrative decisions made by the perspective of administrative bodies. Administrative decisions may be the foundation of the administrative contract or manners to fulfill a administrative contract, but they are different anyway. When administrative contracts are chosen that means the administrative bodies should respect the will and benefits of the other part. The administrative bodies can't be both game runner and game judger at same time. This is the reason foundation of the dissertation and constitutes the second chapter of the dissertationNow that administrative contract is not belong to the administrative decisions, it has not the legal effect of presume and administrative bodies who are the parts of the contract cannot compel the other part to perform, they have to get it fulfilled by bringing the law suit before the court.Though sometimes the administrative bodies have the power and duty to make the other part of the contract to perform, but in most cases they have not. Even though the administrative bodies always have privilege to rescind or change the contract, they must first pay damages or compensation to the innocent parts. The other parts of the administrative contract have right to say no against the will of the administrative bodies who are part of the contract. These is Chapters 3th.After necessity of bringing administrative law suit proved, the dissertation proves that it is common experience for administrative bodies to bring the administrative litigation before the Court,for example in Germany, France or Taiwan of China. Scholars in mainland of China also propose that the right for administrative bodies to bring litigation should be affirmed.Then how can we move to the new system? The idea of administrative litigation should be updated, both about the purposes of litigation and its types. The purpose of administrative litigation not only limited to protecting humans rights but also settling the disputes between administrative bodies and common people,even between different administrative bodies. And action of defrayal is also necessary for administrative bodies to fulfill their contract claims. This is the 5th chapter of the dissertation.In the end, the dissertation discussed some specific rules in order to run the litigation well. In order to reduce the number of the suits brought before the court, administrative bodies power should be defined.and in the process of litigation, civil actions could be merged into the administrative actions. When administrative bodies bring administrative law suits, they should take the burden of prove. In order to settle the dispute effectively, ADR could be introduced. This is the 6th chapter of the dissertation...