Research On Judical Review Of Administrative Contracts

The administrative contract is a kind of government’s administrative activities for the purpose of implementing policies and carrying out laws and regulations by the means of private law to achieve the purpose of public interest.Unlike the traditional high-powered administration,the administrative contract introduces concepts of equality,freedom,consultation and responsibility into the administration,enhancing the acceptability of the administration and diluting the compulsory characteristics.Originally the application of administrative contract is earlier than its academic cognition.It is the academic unconsciousness that gives the administrative contract rapid development.Now the administrative contract is widely used as a new management method in many countries.As a product of integration of private law and public law,it is difficult to distinguish administrative contacts from civil contracts both in theory and in practice.The distinction between administrative contracts and civil contracts concerns not only the different procedural mode,but also the various relief ways to settle disputes.This paper firstly defines what the administrative contract is,compares the similarities and differences between administrative contracts and civil contracts,then analyze typical administrative contracts cases,finally puts forward the point that "rights and obligations in administrative law" should be core standards between the two.Judges can identify administrative agreements effectively through functionalism when hearing administrative agreement cases.In administrative contracts litigation,the qualification of the parties is based on the relativeness of the contract,at the same time the limitation of contract relativity should be broken through in order to determine the appropriate plaintiff through"legal interest mode" and the appropriate defendant through "administrative subject theory" respectively.This standard embodies not only the contractual but also the administrative nature of the administrative contract,and realizes the unity of interests and responsibilities.In the contract of state-owned land use transfer and the contract of expropriation compensation for housing,it is necessary to name the local government signed with the administrative contract as the co-defendant in the litigation in order to completely resolve the dispute.Administrative contracts cannot be equated with civil contracts or the administrative actions.Rules of effectiveness review are not the simply addition of the rules of civil contracts and those of administrative contracts.Administrative contracts should have more stability than civil contracts,the reason is that administrative contracts establish the relationships in public law.The design of effectiveness review rules of administrative contracts should be consistent with this goal.The provisions of Civil Law and the Contract Law shall mainly apply to the effectiveness review of administrative contracts,and the basic principles of administrative law should play the function of strengthening the effectiveness of administrative contracts.Taking the invalidity of the administrative contract as an example,the reasonable elements of Article 75 in the Administrative Procedure Law on "Significant And Obvious Violations" shall be absorbed through the provisions of the "Violation of the Prohibition provisions of laws and Regulations" in the Contract Law,and restricted by the basic principles.The presumptive legality of administrative acts do not apply to administrative contracts.Article 70(about the reasons of the revocation)of the Administrative Procedure Law cannot be applied to administrative contracts,but Article 54 of the Contract Law.The administrative contract and the administrative act are two different ways for administrative organs to carry out administrative activities.They have significant differences both in ideas,procedures,effectiveness and responsibilities,etc.Due to the lack of substantive and procedural laws of administrative contract in our country,the application of administrative contract litigation rules in judicial review is confusing.The rules constructed around "specific administrative acts" should be distinguishingly applied in the judicial review of administrative contracts,in other words,Give back to administrative law what is administrative and to civil law what is civil.The relationship between legality review and effective review should be correctly grasped.The object of legality review is mainly administrative priority of the unilateral administrative act exercised by the administrative organ,while the object of effectiveness examination is the content of the administrative contracts.The principle of rule of law and the principle of reliance protection should be carefully applied in the signing and implementation of administrative contract cases.We should consider whether the administrative or contractual nature of the problem is in particular cases,then choose the correct rules.As the Supreme People’s Court judge Geng Baojian said,when hearing administrative contract cases,we should abandon the traditional habits and ideas of one-way review of administrative acts,and fully follow the basic principles and concepts of civil law,such as honesty,credit and autonomy of meaning while adhering to the legality review and maintenance of the public benefits.The principle of the reliance protection in administrative law is grafted with the principle of honesty and credit in civil law,and the administrative legal norms are effectively linked with the corresponding civil legal norms.The Judicial Interpretation of Administrative Contract Litigation makes specific provisions on the claims of administrative contracts cases,reflecting that claims are neither the basis for the division of litigation types,nor subject to the strict restrictions of the one-lawsuit-to-one-action in order to facilitate the trial of cases and to settle disputes.As far as the choice of judgment type is concerned,the invalidity confirming decision of the administrative contract should be limited,the judgment should be increased to support the plaintiffs request to change the contract,the judgment type should be enriched and specialized.