Font Size: a A A

The Theoretic Thinking And System Design About The Administrative Contract Of China

Posted on:2003-06-08Degree:MasterType:Thesis
Country:ChinaCandidate:Y J XiangFull Text:PDF
Abstract/Summary:PDF Full Text Request
Administrative contract is a substitution of the high-powered administration measure which characterizes by control and sub-jection and it is more flexible and softer than the high-power ad-ministration measure. As an administrative measure, it has been widely practiced all over the world and is becoming an outstanding characteristic of the modern administration. However, theoretic research and rules formulation of administrative contract has been lagged behind and is becoming an important task for the admini-strative law circle. It is possible and necessary for public authorities to adopt some more flexible and softer measure, besides the high-powered administrative action authorized by laws, in order to execute administrative policy. Facts also proved that, although two sides of administrative contract weren't equal in status, they could reach an agreement under a certain procedure control and regulation; mean-while, the agreement isn't in contradiction with the principle of rule of law. Additionally, it was perceived that the emergence of administrative contract revealed the necessities of the expansion of modern country's roles, satisfied the requirements of notions ch-ange of modern democracy and state, and favored social stability and economic prosperity. Administrative contract can be defined from two different as-pects. First, based on the relationship between administrative con-tract and ordinary civil contract, administrative contract can be de-fined as an agreement concluded between two public authorities, or between public authorities and its staff member, or between public authorities and individual. It, considering the demands of admini-stration, is signed to establish, change or cancel the legal relations of administrative law. Second, based on the connections between administrative contract and common administrative acts, admini-strative contract can be defined as a administrative acts which are used to realize some fixed administrative goal through the intro-duction of contract concept in establishment of agreement between public authorities, public authority and its staff members, public authorities and individual. It indicates rights and duties according to Administrative Law. Scholars and researchers all over the world categorized ad-ministrative contract differently based on different angles. Accor-ding to status of both sides involved in administration contract, Germany and Taiwan Region grouped administrative contract into "equal contract" and "unequal contract" in Administrative Pro-cedure Law. This method of categorizing is worth being followed. The administrative contracts which are mostly often used in our country's practice are as follows: contract of renting state-owned land; contract of renting & management state-owned enterprises; contract of renting rural land; contract of government purchase (including contract of ordering and purchasing grain; contracts of ordering goods in national level; contract of public facilities construction; contract of land nationalization; contract ofhouses demolishment and immigrants settlement; contract of the BOT project; contract of government's guarantee for foreign loans and etc.); agreement between administrative authorities; all kinds of responsibility division signed by authorities and involved indi-viduals, village regulations signed by all villagers and etc. Due to the dual-characteristic of contract and administration of administrative contract, when the model of rights and respon-sibilities division is considered, following 2 basic principles must be followed: One is the facilitation of realization of the fixed ad-ministrative goals; the other one is the prohibition of unreasonable conjunction with rights and duties under the limitation of reali-zation of administration goals. They are interpreted in regulations that it not only authorizes public authorities' contract priorities, but also encourages the other contract party to supervise public autho-rities' act...
Keywords/Search Tags:Administrative
PDF Full Text Request
Related items