On The Pre-contract Obligation Of Administrative Subjects In Administrative Contracts

Administrative contract is a typical non-power administrative management mode,and its application value is gradually recognized in practice.However,at present,there are still many unreasonable legal regulations on administrative contracts in China,especially in the pre-contract stage when the contract has not been formally established.Since administrative nature is the main attribute of administrative contracts,lead to systems design on the exercise of the prior right of administrative subjects contract with full guarantee,but lacks the effective measure to control them,to show the tendency of administrative contracts to the executive order.In order to reasonably restrict the power operation of the administrative subject and finally achieve the goal of successful conclusion of the contract,we need to introduce a clear concept in the administrative contract,that is,the pre-contract obligation.At present,the administrative subject's pre-contract obligations have not received due attention.The first reason is that the theoretical research on administrative contracts is in the initial stage,and the attention has not been focused on the conclusion process.Second,the field of administrative law has always attached importance to the establishment of power system and ignored the establishment of obligation norms.However,the pre-contract obligation has an important value that cannot be replaced by other concepts and systems.Firstly,the introduction of pre-contract obligations meets the different requirements of the dual nature of administrative contracts for contracting.On the basis of giving priority to the consideration of factors of public law,the realization of freedom of expression is also taken into account.Secondly,with the contractual obligation as the context,the specific administrative acts throughout the contracting process as a whole,and ultimately serve the perfection of the contract to conclude regulations;Finally,the gap of administrative contract obligation system can be filled up,and a new perspective is provided for the control of the right to benefit,so as to make some achievements in solving the imbalance of rights and obligations between the contracting parties and other practical problems.Accordingly,the pre-contract obligation established in the administrative contract has the necessity,and the ideal shape of its existence,still is fixed in the form of compulsory norms in relevant administrative legal norms,and as the key elements of concluding administrative contracts theory.Therefore,it is necessary to take the pre-contract obligation as the center and include the subjects,rights,behaviors,responsibilities,remedies and other legal elements in the contracting stage into its radiation scope,so as to form a theoretical system of pre-contract obligation with the basic framework of 'obligation fulfilment--responsibility assumption--dispute resolution'.As a necessary part of contract theory,its basic elements meet the application needs of all types of contracts and are not exclusive to the field of private law.However,the theory of pre-contract obligation in private law is restricted by the relativity of debt and cannot meet the administrative requirements of administrative contract.Therefore,the connotation of pre-contract obligation in administrative contract needs to be redefined according to its special needs,so as to avoid the theory of private law slavish copy in practice.It exists in the whole process from the beginning of contracting to the effective date of the contract,and is directly stipulated by law based on the dual protection of the public interest and the personal interest of all stakeholders.It is an independent obligation different from the attached obligation in the narrow sense.The administrative subject,as the initiator and the leader of the contracting parties,has the connotation of administrative management and administrative supervision in performing the pre-contract obligation.Therefore,it is higher than the general subject in terms of the depth and breadth of obligations.It is the negative obligation restricted by both substantive and procedural norms on the basis of subjective good faith.On the basis of defining the basic connotationl,in order to make the administrative subject's pre-contract obligations can be properly performed,its basic structure should be analyzed.As the pre-contract obligation is the collection of objectification obligation and principle obligation,it is difficult to list them one by one,so the pre-contract obligation with special requirements in administrative contract is the focus of analysis.Receptors in accordance with the obligations of different:one is the commitment to general contracting parties.Since the pre-contract obligation does not exist on the basis of the formation of the contract,in the process of offer invitation,offer,contracting consultation and so on.the administrative subject always has the obligation to inform,maintain fair competition,keep secret,explain reasons and other contractual obligations,and its obligations must be performed actively and fully,which is consistent with the scope of its prior right.Second,the specific obligations undertaken by the confirmed contracting parties.While ensuring that the conclusion of the contract is based on mutual consent,the administrative subject shall bear the additional burden of comprehensive supervision over the conclusion of the contract.Such obligations are not generated when the administrative subject comes into contact with any potential contracting party,but only when the counterpart is specific can the performance of its obligations be meaningful,which ismainly manifested as obligation of full consultation and strict examination.hird,the procedural obligations to the public,which are exclusive to public law contracts such as administrative contracts.Administrative management takes the realization of social equity as the ultimate goal,and the important premise of equity is openness and participation,so that the public can participate in the administrative decision-making based on the information obtained.In the contracting stage,the main performance is the administrative subject's commitment to public obligation and organize public participation obligation.The clarity of the structure of the pre-contract obligation makes the administrative subject have rules to follow in the performance of the obligation in the contracting stage,and provide reference for the commitment of obligations.At the same time,it also makes the derived responsibility investigation and relief have measurement standards.Although the pre-contract obligation of the administrative subject is not an explicit concept in the legislation at present,its internal requirement in the legal theory,system and judicial practice all levels appeared gradually,and its establishment in the administrative contract has sufficient basis.From the legal basis,the principle of good faith is the common legal basis of pre-contract obligations.And its unique connotation in the administrative law,especially for the administrative subject to ensure fair competition,full consultation,inform and other goodwill requirements,and properly handle the public interest and personal interests,rights and obligations of the relationship between equity requirements.As the indirect participants and stakeholders of administrative contract behavior,the public assume procedural obligations to the administrative subject,so its theoretical basis is the requirement of openness and participation in the principle of due process.From the perspective of institutional basis,procedural systems such as administrative openness,hearing,explanation of reasons and avoidance lay a clear foundation for the legislation of administrative subject's pre-contract obligations in order to ensure public participation and maintain the order of fair competition as the regulatory objective,and also provide a measurement standard for the legitimacy of the performance of obligations.At the same time,there is a problem that procedural system pursues pragmatism too much and design is not rigorous,which is the meaning of the concept of pre-contract obligation.In terms of power control,the fundamental position of substantive regulation cannot be shaken after all.Look from judicial practice basis,began to establish the system of the contractual obligations the need of administration,and its application in practice prior to the improvement of the theory,in case of 'pro-contract obligations'has emerged in the early,not only because of its produce controversy has been received by the mode of administrative remedy,and protection for entities in the process of concluding administrative contracts have to be found.Its existence forms are diverse,and it often reflects improper performance of obligations at the time of contracting through disputes over contract performance,or shows itself in the face of disputes over specific administrative acts,but indirectly proves that the performance of pre-contract obligations has become one of the reference bases for case judgments.However,it is not enough to set objective standards for performance of pre-contract obligations.The clear responsibility arising from the breach of the pre-contract obligation is the institutional guarantee for the performance of the obligations of the administrative subject.Considering that this kind of responsibility has the dual characteristics of administrative responsibility and responsibility for contracting fault,this paper calls it as the first contractual responsibility.Due to the basic elements of cognitive deviation to the pre-contract responsibility,unified applicable law has one-sidedness in the responsibility imputation principle,at the same time to protect object scope narrow,standard fuzzy,form a single,such as defects,lead to the responsibility of breach the pre-contract obligation is ignored,and the scope of regulation with obligations is also inconsistent.In view of the above problems,one should fully understand the particularity of the pro-contract responsibility.As an independent responsibility type distinguished from responsibility for breach of contract and responsibility for infringement,it includes responsibility for violation of the inherent requirements of law,responsibility for breach of contract due to defects in contracting behavior,and legal responsibility for protection of the other party's interests.The responsibility arises when the reliance interest is damaged by the contracting act and the victim's claim to the administrative subject is not limited by the existence of the contract.It takes the relative party of the contract,the potential contracting party,the public and other stakeholders as the object of responsibility,so that the responsibility bears multiple functions such as compensatory,punitive and protective.The second is the reconstruction of the compound imputation principle,which takes the fault principle following the objective standard as the main imputation principle,and takes the no-fault principle as the supplementary imputation principle based on the principle of fairness and the concept of public burden to make the scope of imputation more comprehensive.The third is to improve the system design of the administrative subject to bear the pre-contract responsibility,take the reliance interest and inherent interest as the object of protection,take the degree of trust as the measure of whether the interest is protected or not,and make clear that the scope of responsibility is not limited to the performance of the interest,as for the interest damage caused by the fault of the other party is not protected.At the same time,it breaks through the single responsibility form of contracting responsibility,takes damage compensation as the main responsibility bearing mode,and takes administrative punitive responsibility form,damage compensation responsibility form and corrective responsibility form as auxiliary means.This kind of reasonable regulation on the pre-contract responsibility can not only restrict the exercise of the power of the administrative subject,but also avoid the negative impact of excessive burden on public management.It is an inevitable requirement for administrative subjects to urge them to properly perform their obligations and make up for the defects in the performance by planning the settlement path of disputes arising from the pre-contract obligation.At present,the choice of the relief mode of administrative contract in China is quite confused,and the relief mode of private law and public law is used interlace.However,in terms of the application of rules,the private law mode and the mixed mode do not coincide with the nature and inherent requirements of the pre-contract dispute,but are only realistic compromises made because the public law mode is not sound.The mode of administrative law has incomparable advantages in balancing public and private interests,supervising the exercise of the prior right,and improving administrative efficiency.Therefore,it is the right choice to establish a unified mode of public law relief to resolve pre-contract disputes.Although the current administrative relief mode has many unreasonable points,its limitations can be completely overcome by improving the relevant administrative system.On the premise of adhering to the mode of public law relief,civil rules with general legal commonness or contractual nature can be applied as supplementary basis within the permitted scope of law.In terms of the application of specific relief approaches,the juridical relief approaches should be given priority.Its relatively mild handling method is conducive to the timely settlement of disputes,so as to increase the possibility of continuing consultations,which is consistent with the purpose of resolving the pre-contract disputes,and has advantages in improving the efficiency of relief and controlling costs.Its diversified relief methods make it possible for all kinds of disputes to be properly settled.It is acceptable for the parties to solve disputes by themselves through consultation,inquiry and questioning,as well as for the third party to intervene in dispute resolution through mediation,complaint and administrative reconsideration.However,judicial relief has the unique functions of guaranteeing the comprehensive relief of rights,independent supervision and consistent application of law in the handling of prior contract disputes,making it the only way to completely solve administrative contract disputes and irreplaceable.Due to the lack of legal basis for the settlement of pre-contract disputes,there are problems such as inconsistent standards,low level of standardization,and lack of regulation at the stage of contract conclusion,so there are many difficulties and obstacles in the application of judicial review procedures,which usually need to be converted into cases of administrative acts of power for trial.Therefore,the administrative l itigation system must be improved to achieve the purpose of docking with the pre-contract dispute.On the basis of the establishment of a special bidirectional litigation structure,special rules corresponding to it should be established,including establishing rationality review standards,giving all the stakeholders of the plaintiff qualification,the administrative subject with each other to share the burden of proof,in conciliation way instead of judgment,etc.,to meet the need of pre-contract disputes.Based on the analysis of the value of pre-contract obligation and the preliminary theoretical system construction,this paper finally puts forward some suggestions on the legislative design of the pre-contract obligation.The introduction of the administrative contract law for systematic regulation or the enactment of the administrative procedure law to regulate the administrative contract as a special chapter are the two main schemes available for reference at present.However,the specific regulation of the single administrative law norms,the regulation of the settlement of pre-contract disputes by procedural legislation such as the administrative procedure law.and the supplementary regulation of judicial interpretation and precedents are also of great significance to the smooth operation of the relevant system of the pre-contract obligation.Therefore,it is the most reasonable choice to establish a compound legal regulation mode based on specialized and unified administrative contract legal norms and supplemented by other forms of legal norms.