The Spirit Of Administrative Contract

As a more flexible and more democratic administrative device,this new type of administration method is being paid muchattention by many countries especially by the western countries astheir efficient administrative device to enforce public policy. Withthe surging of the trend of the democratic thoughts and theappearance of the new view of object such as welfare states and soon, the administrative purpose is not restricted in the negativeadministration, but it is enlarging itself into the initiativeadministration. In this background, the administrative contractcomes into being.In recent years administrative lawyers have come to realizethat administrative contract, to the accompaniment of theoreticalcontroversy, has been accepted as disable administrative device toenforce public policy. Academic interests in this subject have alsotranscended national boundaries. To our regret, however, researchin this respect lags behind the practice especially in the PRC ascompared with the western countries. Considerable concerntherefore should be expressed at this subject for the purpose of"steering its course". This article can be regarded as a striving for acomprehensive account of such matter by searching the spirit ofadministrative contract.This paper discusses the problem form the four aspects.I.An introduction to the administrative contractAdministrative contract was the product of changes inadministrative institutes and function in the new era of well far ism.It is wall-developed for its advantages over traditional regulations,and has been accepted as desirable administrative device to enforcepublic policy.As a novelty, there are different explanations according todifferent legal approaches and traditions. In my opinion,administrative contract is the agreement between public authorityand individual on community affairs for the purposes of publicinterest and public administrative, in which the authority has anumber of privileges. We can see that the administrative contractscharacterized by its actor, purpose, content, privilege, and etc.The greatest superiority of administrative contract is theconnecting of the contractual feature to "public law"factor. On onehand, the adoption of contract is the realization of thedemocratization of the administration. It shows full respects to thewill of people compared with administration and it is more suitableto bring the initiative and go-aheadism of people into play. On theother hand, the maintaining of administrative privilege greatlyensures the achievement of administrative purpose. From this wecan see that the contractive administration device is mutuallyprofitable to the two parties of administration.Meanwhile, everything has its two sides. The spirit of contractis to give the administration more power and freedom andindulging into the contract of national administration in order torealize the democracy and efficiency of the administration. Legalproblem can occur as a result of the use of administrative contract.Any potential conflicts between them are highlighted.Unfortunately, this may lead to the ruin of administrative purposeand the encroaching on community goods. Apparently, it is in adilemma to applying the practice of contract in the field ofadministrative law. II.The citation of the spirit of the civil law 1.The theoretical foundation of the citation of civil law. When it comes to the spirit of contract, it goes like this in theadministrative contract: according to the principle of equilibrium ofrights, the main body of the administrative contract through the freeand equal agreement using its own rights. This shows a series ofthe spirits of the private law which are equality, freedom, meaningautonomy and compensation for equal value and so on. 2. Therealization of the spirit of contract in the administrative contract.Some one denied the possibility of administrative contract for itsunequal footing between public authority and individual. In ademocratic society individual has a freedom that is not controlledby the government so that the individual has the possibility tonegotiate with the government equally. And their relationship isestablished on the base of contract. 3. The unequal position of thespirit of contract and the main body of administrative contract.Therefore the key to the realization of the contract is the realizationof the will of contract. But the consent of a contract is not based onan equal footing but the agreement of both sides. An administrativecontract can and existed. 4. The contractive surpass of theadministrative contract. However, to attain the goal ofadministration, the private contract principle needs amend andalternates on the administration law to different degrees. Thecontinental laws create the contract rules that above the private law.It contains specifically: First, under the restriction of administrationprinciple to restrict the contract freedom principal; Second, twospecial compensation rules that are not because of errors. Butrecent practice shows that the unequal footing raise some questions,like discrimination against individual or contractual arrangementsimproperly beneficial for public authority. Therefore, this should benoted and has attracted legislative emphasis. To suggest, as isalways done, that procedure is to serve, effectively and efficiently,the purpose for protecting the bargaining power of individualagainst abuse of privileges of authority. III.The mutual affection of the spirit of contract and theelement of power For want of operation of contract for purposes of publicinterest and public administration, contracting authority should begranted a great, though appropriate, number of privileges.Examples are the power to give instructions as to the mode ofcarrying out the contract objective; power to impose sanction onthose who have broken the contract; power to terminate thecontract are the requirement of public interest. But in the last case,to preserve the financial balance of the contract, the interestedparties are entitled to indemnity from the government. 1.Since theachieving of contractual objective, to a large extent, depends on theattitude of contracting authority towards its contractual obligation,from the perspective of contractual arrangements, in order toenforce contracting authority to perform its obligation, individualshould be granted rights to require damages or sue to court forenforcement when the contracting authority fails to do so. 2.Thereis also some scholar who denied the spirit of contract because ofthe restriction of the administration to the free judgment. In fact,because the government shifts to the initiative administration thetraditional idea should also make the government to have the rightbase of contract conclusion. Although this freedom of thegovernment is limited, we could not denied its existence because ofthis restriction. IV.Correction of the traditional administration thought It is the need of achieving social and economic policyobjectives and the responsibility to protect community goods thatdraw a hard and fast line between administrative contract andprivate contract. But it is not until beyond the urgent of usinggovernment powers that make administrative contract distinguishfrom private contract, otherwise, the arrangement of right and dutyin an administrative contract is just in the same way as a privatecontract. However, as the administrative contract is not similar to theprivate contract, we should respect the authority of the nation andavoid the confusion of the application of the law. The rules that arerelated to the administration law should be consisted in theadministration law. In conclusion, after being aware of the spirit of administrativecontract, the problems of the application of the law are becomingquite easy to resolve. Meanwhile, we should deeply grasp the spirit...