On The Invalidation Of Administrative Contract

The invalidation of administrative contract is that administrative contract doesn't have efficiency from the beginning because it has evident and serious defect or has legal invalid conditions. At present, invalidation of administrative contract lacks of specific research in China and there are no special rules in legislation. The legislations of western countries and Taiwan region define invalidation of administrative contract from the aspect of private law. This thesis advocates that defining invalidation of administrative contract should mainly obey the path of invalidation of public action. As for the detailed conditions of causing invalidation of administrative contract, it can be scrutinized from three aspects: nature of public law, character of private law and its own characteristics. This thesis consists of 4 chapters in the structure.Chapter One studies the meaning of invalidation of administrative contract. Firstly, it indicates the path choice of invalidation of administrative contract and its reason. Secondly, it articulates the purpose of defining the concept of invalidation of administrative contract, namely, gives a brief introduction of it. Thirdly, this chapter defines the meaning of invalidation of administrative contract and holds that in principle it should have the same meaning as the invalidation of administrative action; take the serious violation of law as premise; in result it is invalid from the beginning, surely invalid and definitely invalid; in degree it can be divided into absolute invalidation and relative invalidation; in scale it can be totally invalid or partly invalid. Finally, this chapter discusses the problem closely related to invalidation of administrative contract—the validity of presume-legal. On the basis of the theory and practice in western countries, this thesis proves that limited validity of presume-legal mode can be established in China.Chapter Two explores the application of regulation of invalidation in private law to administrative contract. First of all, it demonstrates the reason of the application, namely, there is something in common among the contractual character of administrative contract, public law and private law. Afterwards, using the legislation of Germany and Taiwan region for reference, it explains two problems caused by the application: one is about thelimit of the application of rules about invalidation in private law; the other is the problem of joining these rules and the invalidation of administrative contract together so as to avoid the logical contradiction between the application of law and legislation. The third part of this chapter puts forward two premises of the application of the rules about invalidation in private law: set up diversiform results of violation of ksuser.dll administrative contract and specify the standard of application of rules about invalidation in private law. On this basis, the author holds that the rules about invalidation in private law should be checked one by one according to the premises and standard. If they accord with the standard, they can be applied; if not, they can be changed or abandoned. This is the main content of the fourth part of this chapter.Chapter Three examines the reasons that may cause the invalidation of administrative contract from the characteristics of administrative contract itself. This chapter can be divided in four parts. The first part gives an introduction of the concluding of contract relevant to the validity of administrative contract on the basis of the system of administrative contract in western countries. The second part and the third part separately analyses these particular rules and indicates some can not be the reasons of invalidation and some must be the reasons. Finally, the fourth part, proceeding from the relation between administrative contract and administrative power of discretion, points out the principal of "contract cannot constrain the power of discretion" and violation of it administrative contract is invalid.Chapter four is the conclusion of this thesis. It concludes the invalidation of administrative contract from four aspects: the subject of confirming the invalidation of administrative contract, the standard of confirming the invalidation of administrative contract, the remedy of invalid contract and the liabilities of invalid contract.