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Research On Defining The Boundary Between Civil Contract And Administrative Contract

Posted on:2019-04-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:J F PanFull Text:PDF
GTID:1366330572465078Subject:Economic Law
Abstract/Summary:PDF Full Text Request
Civil contract and administrative contract are different concepts in civil law and administrative law,but there are often overlaps in the connotation and extension between them.In practice,the legal boundary between them is not clear,leading to the situation of "pushing" or "contending" concerning legal application,procedural remedy,and rights protection.While China is currently drafting civil code and judicial interpretation of administrative agreement,defining the boundary and scope between civil contract and administrative contract reasonably is of great significance for maintaining the unity of the legal system,even the entire legal order.The relationship between civil contract and administrative contract is due to the relationship between public law and private law.As a product of the modern continental law system,the relationship between public law and private law has experienced the development process of "combination of various laws-public-private opposition-public-private integration." The distinction between public law and private law has its historical inevitability and the significance of legal research.It is easy to determine the nature of legal relations,applicable legal regulations,remedies,court of jurisdiction and litigation procedures.The distinction between public law and private law has many theories such as interest theory,traditional subject theory,new subject theory,and power theory.The doctrine of the difference between public law and private law divides public law and private law into two completely different systems,thinking that the legal relationship of public law is all public law in the contents,and there is no period of inclusion of private law.Likewise,the legal relationship of private law is regarded as all private law in the content,and there are no elements of public law.However,this relationship of separating public law from private law is not in line with the actual situation.In practice,the phenomenon of the integration of public law and private law is increasing.The legal relationship between public law and private law has become more common.Publication of private law and privatization of public law are constantly appearing.Publication of private law is more obvious in the field of civil contracts.Freedom of contract is a basic principle of private law.The question is whether"freedom" actually exists and whether the parties can stand on an equal footing in contracting.A history of freedom of contract is how the contract is restricted,and promotes the contractual justice.With the development of globalization,the role of the state is increasingly complex.It is impossible for the state to continue to maintain the traditionally controlled countries that provide the lowest services.It is also impossible to allow the market to operate without regulation,which would damage social fairness and justice.The role of the state must expand the participation and transparency of decision-making in the multi-faceted administrative tasks,strengthen the efficiency of the public sector,and work closely with the private sector to provide more public services and protect people's rights.The role of the state has gradually turned into a cooperative welfare state that emphasizes efficiency and expands participation,showing the trend of publication of private law.The integration of public and private law has increased the difficulty of defining the boundary between civil contract and administrative contract.Investigating the nature of civil contract and administrative contract needs to examine the respective development processes.From the perspective of the development of extraterritorial civil contracts,in the 21st century,most countries have carried out reforms in the field of contract law.The civil contract system is totally different from the classical contract theory.The international private law integration campaign has been carried out recently.CISG,PICC,PECL and DCFR have modernized and unified the civil contract system.From the comparison of the extraterritorial civil contract system and the contract system in China,the current civil contract system is gradually developing towards integration,cross-domain and socialization.The performance is as follows:the integration of public and private law is accelerated,the public law norms and civil contracts are intermingled,and social control highlights the effectiveness of social justice through contracts.From the perspective of the development of extraterritorial administrative contracts,France,as the originator of administrative contracts,relies on the concept of public service to continuously improve the system of administrative contract through legislation and jurisprudence.German administrative contract has experienced a situation from denial to rapid development.Japan and Chinese Taiwan have enriched their respective administrative contract systems in accordance with the laws of France and Germany.The Anglo-American legal system does not have an independent administrative contract system,and the civil contract rules are uniformly applied.In recent years,the emergence of a new regulatory model for public-private partnership in United Kingdom and United States has led to the gradual expansion of the relevant contractual legal system.There is no unified administrative contract law in the world,and the distinction between administrative contract and civil contract is not obvious.Comparing the practice of extraterritorial administrative contract legislation and judicial trial,we can see that the administrative contract shows the following image scenarios:the fragmentation of the administrative contract is existing,the local characteristics of the administrative contract are obvious,the application of the administrative contract to the civil law norms becomes a general rule,and mixed contracts keep appearing.The reason why the civil contract and the administrative contract need to be defined is the huge differences between their compositions and legal effects.They have different rules on conclusion of contract,validity of contract,performance of contract,liability of contract,litigation procedures,and dispute resolution methods.The administrative contract has stricter requirements concerning the conclusion of contract than the civil contract.It is rigid applying the ultra vires rule.The administrative subject enjoys certain privileges in the performance of the contract.The forms of contract liability of administrative contract are richer than civil contract.There are differences concerning jurisdiction,parties,evidence,execution,litigation costs,etc.There is a big difference in the admissibility of arbitration and the use of ADR.The defining of the nature of the contract will influence the allocation of rights and obligations of the parties,and even the entire legal system directly.Therefore,it is particularly necessary to define the boundary between them clearly.In continental law system,the viewpoints of differentiation between civil contract and administrative contract are mainly divided into the view of subject of contract and view of the object of contract.Both of them develop different theories,each of which has certain limitations.It is imperative to establish a dividing rule which is consistent with the legal context of our country.In judicial practice,different courts,and different parties have different views on the differentiation between civil contract and administrative contract.It leads to different decisions concerning same issues.Uniform rules are needed urgently.The standards of the boundary between civil contract and administrative contract are different.French law establishes the subjective and selective conditions through jurisprudence,that is,the purpose of contracting is to implement the task of public utilities,or the terms of the contract contain a clause that goes beyond the common law.German law adopts the theory of object of contract standard and the overall judgment criteria.Japanese law classifies administrative contracts and determines the criteria for different types.Chinese Taiwan has adopted the standard of German law.There is no distinction in the Anglo-American legal system.Considering the current situation of Chinese legislation and judiciary,the standard of the boundary between civil contract and administrative contract should not adopt a holistic view,which is a one-size-fits-all identification of a civil contract or an administrative contract.We should balance the different values on freedom and regulation,pubic interest and private interest,equality and status,when we define the boundary between civil contract and administrative contract.We can learn from the proximate cause theory in the Anglo-American contract law and tort law.If it realizes the public interest,or implements the administrative function,it can be determined as administrative contract.If it is far away from the public interest and administrative function,it can be determined as civil contract.If the parties of contract are equal,it can be regarded as the civil contract.The object matter of the contract,the purpose of the contract,and the status of the contract are taken as considerations for the boundary between civil contract and administrative contract.Adopting a comprehensive standard is more comprehensive than a single standard.In China,the ambiguity between civil contract and administrative contract is increasing.Analyzing the transference of state-owned land use contract,government franchise agreement,investment attraction contract,public-private-partnership,and government procurement contract,each type of contract is subject to different arguments on the nature of civil contract and administrative contract.Based on a comprehensive review of various contract texts and judicial cases,it should not be classified as a civil or administrative contract as a whole,but should be judged separately for contract matters,according to the proximal-cause theory.Defining the boundary between civil contract and administrative contract should depend on Chinese legislative situation.Chinese legislation on contract follows the pace of international legislation.The effect of compulsory legal norms on contract is gradually specified by law.The interpretation of economic policies in public interest is becoming more and more rational.Chinese administrative litigation is independent from civil litigation.The administrative contract system has been gradually affirmed by legislation and judiciary in recent years.The administrative subject enjoys moderate dominant rights,the influence of regulations on administrative contracts is legalized,and the scope of judicial decisions on administrative contracts gradually expands.The legislation of administrative law is insufficient.For the institutional arrangement of the boundary relationship between civil contract and administrative contract,it is necessary to clarify the respective territories of them from the theory of the proximate cause to enhance the certainty and adaptability of law.On one hand,a codified model can be used to clarify the boundary to draft civil codes and administrative procedures.On the other hand,a single-line legislation model can be adopted,which clarifies that it has the characteristics of an administrative contract in a particular field,stipulates special rules for such behavior,or clarifies it through judicial interpretation of administrative agreement by Chinese Supreme Court.At the same time,it allows judicial practice to explore and establish judicial application rules for relevant cases,and then turn into legislation when the time is ripe.The boundary between civil contract and administrative contract can be constructed using the theory of proximal-cause.The positive list of the administrative contracts should be closely related to the administrative power.If it is far from the administrative contract,it should be recognized as a civil contract and included in the negative list of the administrative contract.For civil and administrative mixed contracts,we should consider the factors such as the object of the contract,the purpose of the contract,and the status of the contract.If the matters disputed by the parties are closer to the administration,they shall be handled in accordance with administrative contract law.If the matters disputed by the parties are closer to the civil,they shall be dealt with by civil contract law.
Keywords/Search Tags:Civil Contract, Administrative Contract, Defining the Boundary, Public Law, Private Law, Public-Private-Partnership, Object of Contract, Proximal Cause Theory
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