Study On The Relief Mechanism Of Administrative Contract

Nowadays, On a global scale, with the development of market economy, administrative contract, as a new and effective administrative management approach, has been increasingly applied in the social life,which is under the influence of extensive identity of democracy concept, economic reform on re-building the relationship between the state and enterprise entity, and the theoretical development of administrative law and many other factors.Administrative contract is an inevitable result of reform that administrative law transformed from a single authoritarian administrative tools to executive power control and citizens' legitimate rights and interests safeguard.Administrative contract is also a more soft and flexible administrative approach, which replaced the the high power. While in the past, the main feature of high power is dominant and obedient. In china, our market economy develops rapidly, and our country is actively restructuring service-oriented government, therefore, the application of administrative contract will be wider and wider. However, our relatively behindhand administrative contract relief mechanism become the great obstacles of development.The purpose of this essay is to state the concept of the contract itself, and to emphasize to analysis the series of relevant content of relief mechanisme. Combined with relevant mature system of western developed countries, this essay is also to analysis our actual administrative relief mechanism,and to put forward a reasonable relief mechanism which suit the stage of relief development.The administrative contract exists its own conceptual conflict, which lead to the widely differences from the theory to the system design and the practical application. In western developed countries, the research of administrative contract and other theory related are deep. Because of the differences that whether the distinction exist between public law and private law or not, Common Law System represented by the British and USA and Civil Law System represented by France and Germany has their own defination upon administrative contract, which directly contributed to the differences of relevant institutions and ways of remedies.The study on the above countries providing a salutary lesson for our country's legislation. In China, administrative contract is just a definition of jurisprudence, not the concept of legal.And on the one hand, administrative contractual disputes are adjudicated by civil courts according to the civil rules. But on the other hand, to the executive authorities of the contract unilateral power act, the judicial practice sometimes adjudicates as administrative infringement cases. Dislocation of legislation and judicial confusion in the proceedings of the executive contract presents numerous and unorganized situation, also makes the conflicts between theory and practice, legislative and judicial,and the ideal and the reality legal system.By analyzing the present state of our administrative remedies, the essay proposed three period architecture towards the current situation. That is short-term, medium-term, and long-term system design, expecting to have a strong practical operability. Firstly, for short-term goal,under existing lawsuit system, we take civil proceedings as the basic way of relief, and take administrative proceedings as complementary way. It may avoid to destroy our existing power distribution pattern, while the way of judicial interpretation may expand the scope of administrative proceedings.The short-term design may be an expedient, but easy to achieve. Secondly, for the mid-term goal, it can not only solve the current problem that people don't have a proper way to remedy which existed in some administrative contract lawsuit, but rationalize the relationship between administrative contract and administrative proceedings. The most feasible way is to break through the existing legal system, and to reasoning the feasible methods and procedures of administrative litigation both from theory and legislation. At last, for the long-term goal,we should subdivide the relief mechanism on the basis of the mid-term goal, for example:when administrative contract dispute happened, how to resolve the dispute? We get relief based on what kind of basis? In the course of administrative contract creating and performance, at the time of when you need to modify, or other dispute emerged, detailed regulations such as the nature of the responsibility and other issues should be made perfectly. Only the perfect legal system can we get the settlement of disputes.