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On The Administrative Contract Under Administration According To Law

Posted on:2005-08-04Degree:MasterType:Thesis
Country:ChinaCandidate:Z F ZhangFull Text:PDF
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Administration according to law, which is the basic principle of Administrative law, confronts unprecedented challenge after contractual idea has been taken into account as a form of administrative contract in the field of administrative law. The reason lies in that the nature of contract is free consensus, while the rule of law demand primacy of law or requirement of law. In this way, they are not compatible. It is how to explain rationally the relationship between administration according to rule and freedom of contract from the perspective of theory that is a basic problem of the long-lasting development of the administrative contract theory and the rational construction of the system. All of these problems mentioned above are what this dissertation wants to solve.The first chapter mainly analyzes two basic characteristics of administrative contract: administrative and contractual, as well as the coming conflict between administration according to rule and freedom of contract. The administrative feature of administrative contract is illustrated as the privileges of public authorities while the contractual feature means the consensus between public authorities and the opposite parties. The two features existing together in the Administrative contract assume a kind of trend that the more privilege public authorities have, the worse consensus the two parties reach. Itis also true conversely. This conflict is the source of the contradiction between the rule of law and the freedom of contract, because the rule of law is to assure the citizens freedom and rights in case of the abuse of administrative power, and the discretions of public authority are strictly limited in this way. The contradictions between the rule of law and the freedom of contract exist in four aspects: firstly, the traditional principle of administration according to rule does not include administrative contract; secondly, the freedom of contract emphasizes private interests so that administration would be disturbed which leads to violation; thirdly, the administrative feature of Administrative contract may cause violation of private interests included in administrative contract; fourthly, from the perspective of reality, the consummation of legislation will take a long time, which is the premise of the realization of administration according to rule in area of administrative contract.Before the explanation of the relationship between administration according to rule and freedom of contract, a problem must be clarified first: is there any space for administration according to rule in the field of administrative contract? The second chapter will analyze this problem from two perspectives.The rule of law as the basis of administration according to law unveiled that the nature of the principle of administration according to law is to assure private rights to achieve. On one hand, because the administrative contract as an administrative issue is far from the basic requirement of the rule of law, primacy of law and requirement of law embody the value of controlling administrative contract, which is to assure the privilege of public authority limited in the reasonable range. On the other hand, the administrative contract, which is a kind of new system of realizing public interests, has a basic feature of bilateral negotiation rather than unilateral decision. As a result, public authority may abuse privileges in a large spectrum in the name of administrative contract, thus, administrative contract demands administrationaccording to law passively. In conclusion, it is requisite that administration according to law dominates the administrative contract.The third chapter focuses on solution of the problem how to dominate administrative contract to preserve the mobility of administrative contract and to limit effectively the discretionary feature. As far as the author is concerned, the construction of substantial rules is extraordinarily important in terms of specific system. The rights and obligations of the opposite party in administrative contract and th...
Keywords/Search Tags:Administration according to law, Freedom of contract, The principle of balance, Substantial rules, Procedure rules
PDF Full Text Request
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