On Administrative Contracts

The development of modern administrative law and the establishment ofthe idea of administrative service open up the broad development space fornon-power administrative manner, thus, contract administration arises ispraised highly by countries all over the world with its flexibility, democracyand efficiency. The glamour of the administrative contract is to realize thepublic law purpose in the form of contracts, which reflects thecomplementation and integration of the public law and the private law and isthe concrete embodiment in the process of socialized power and socialcontracts and it has unique connotation of the social cultural and pursuedvalue. Because of the lagging of the theoretical research of administrativecontracts in our country and the blank of its legislation, administrativecontracts lack the legal procedure in its establishment, fulfillment andmanagement, which make the relieve measures not available when disputestake place and weaken people's enthusiasm of concluding administrativecontracts to a certain extent, and make the falling back of democratization ofadministration appear. Therefore, it is urgent to carry on the legislativemanagement to the administrative contract system in our country andconstruct the administrative contract system that meet the need of modernadministration. Starting with the research on basic theory of theadministrative contract in our country and on the basis of drawing lessonsfrom the administrative contract systems of U.K, USA, France, Germany, etc.,this article gives an exploration and summarization of the rules of the modernadministrative contract, and it further analyzes the current situation and futureorientation of China's administrative contract and proposes a reservationhoping that it will strengthen and improve the administrative contract systemof our country and offer useful ideas for promoting the reform ofadministrative management system.This article can be put into six parts: forward, the main body with fourchapters and conclusion.In the forward, a brief illustration is made to describe the currentsituation of the theoretic research and application of the administrativecontract in China, the questions to be solved in this article, and the practicalvalue and theoretic significance of building the system of administrativecontract.The main body of the text contains four parts including the category ofthe basic theories of the administrative contract, the development of theoriesof the administrative contract system and its practice in foreign countries, thedevelopment of the administrative contract system in China and its problems,and the frame of building the administrative contract system in China.Part one is about the category of the basic theories of the administrativecontract. Starting from the basic theories of the administrative contract, thispart studies the basis of the existence of the administrative contract, itsmeaning, and its particularity comparing with the civil contract, and its natureand orientation, which provides a solid theoretical foundation for building theadministrative system.The administrative contract has its existing basis. Firstly, a contract mustbe desirable. In the administrative activities, there is a desire in theadministrative contract that the government signs with relative people.Secondly, it is free for contracts in the field which isn't prescribed in the lawof administrative organs.From the concept, the administrative contract refers to the agreement onestablishing, altering, or stopping the administrative legal relation, which isreached according to the meaning of both sides by an administrative organwith other administrative organs citizens, legal person or other organizationsin order to realize the task of administration.Different from the civil contract, the administrative contract has itsparticularity. First, the legal relations adjusted in civil contracts andadministrative contracts are different. Second, the subjects in civil contractsand administrative contracts are different. Third, both the administrativecontract and the civil contract require shared desire, but there are differencesbetween the two. Fourth, there are differences in the positions, rights andobligations of the civil contract and the administrative contract. Fifth, greatdifferences exist in their perspectives of solving disputes.The administrative contract is shown as the double attributive charactersof administration and contract in view of its nature, which is different fromthe civil contract and different from the simple administrative behavior too.Firstly, the administrative contract is administrative. Secondly, theadministrative contract has the nature of a contract.Part two, the Development of Theories of the Administrative contractsystem and its Practice in Foreign CountriesThis part mainly makes an overall and systematic study to three differentkinds of main administrative contract systems in UK, USA, France andGermany. And on the basis of comparative analysis, this part summarizes thebasic contents of the administrative contracts and characteristics of variouscountries, thus it can provide beneficial and rational compositions for theadministrative contract system of our country.Part three, the Current Situation of the Administrative Contract Systemin China and its ProblemsDuring the two or three decades of using administrative contracts tomanage national affairs in our country, the administrative contract hasdevelopment rapidly in practice, but comparatively there is a lag intheoretical research, legal institutional improvement and administration ofjustice with a great deal of problems, which can be shown mainly in thefollowing several aspects: First, whether the administrative contract isindependent from the civil contract causes disputes in theory. Second, aunified legislation for administrative contracts is lacked. Moreover, a correctunderstanding of the administrative contract characteristics is lacked in theadministrative enforcement activities. To analyze the current situation andproblems of China's administrative contract system from the above aspects,we can seek a suitable breakthrough point in building the administrativecontract system of our country.Part four, the Construction of the Administrative Contract System inChinaCombining the national conditions and the judicial practice in ourcountry and the advanced legislative experiences abroad, the author proposesthat we should construct the administrative contract system in China from thefollowing several aspects or basic breakthrough points: first, the valueorientation of the administrative contract. The basic value of building thesystem should be equilibrium in public service and give priority to publicinterests, as well as give consideration to the humane spirit of communication,consultation, credit and cooperation. Second: the legislative mode. As theprerequisite and foundation of building the administrative contract system, itis very essential to choose the appropriate legislative form. Considering thedevelopment of the administrative contract of our country at present, it is anideal choice scheme to make a special, unified legal norm to adjust thecontracts. Third: the basic principle that should be followed. The constructionof the administrative contract system should follow principle of opencompetition, principle of overall fulfillment, the preferential principle ofpublic service, and the shared desires principle. Fourth: the effect system. Theeffect of the administrative contract includes the effect in form and the effectin fact. Whether an administrative contract effective or not can be judged byfollowing the legitimacy principle, that is, whether the subject is legal,whether the duties and rights are legal, whether the content is legal, andwhether the procedure is legal. Fifth: establishing, fulfilling, altering, andstopping the system. The establishment and fulfillment of an administrativecontract should follow the legal procedure. Administrative subject can't alteror remove a contract without authorization;otherwise he will break a contract,and should bear corresponding legal liability. Sixth: the system of procedurenorm and control. An ideal place for exchanging views freely must be offeredfor the administrative contract person in the procedure design of anadministrative contract;meanwhile, a complete system should be set up inorder to restrain the administrative organ from exercising authority willfully.Seventh: the relieving system. Disputes should be solved so an effectiverelieving system should be set up to solve disputes caused in theestablishment and fulfillment of an administrative contract. In our country,the remedy manners of administrative contract disputes can be divided intorelieving manners outside the administration of justice and inside theadministration of justice. The relieving manners outside the administration ofjustice include: (1) Consultation or adjustment of the government. (2)Administrative reconsideration. Judicial relieving is the most important, andthe final relief route of an administrative contract. Because the currentAdministrative Procedure Law is made when we didn't fully understand theadministrative contract and the administrative contracts didn't developedfully in practice, it is unavoidable to have inadequacy in the administrativecontract check. So the current administrative litigation system must bereconstructed according to the characteristics of administrative contractdisputes, mainly from the following aspects: (1) Qualify the plaintiff ofadministrative litigation for the administrative subject;(2) Dispose theresponsibilities of providing proof between parties and confirm the time limitto provide the proof;(3): the application of the mediating principle.ConclusionThis part is a summarization of the above-mentioned four parts andgives the view of this article: summarize the problems in the theory,legislation and enforcement of the administrative contract in our country,regard making the special law of the administrative contract as thebreakthrough point, and adopt the successful experience of other country forreference, to construct the administrative contract system which is suitablefor China's condition.