A Probe Into The Legal Character Of Government Procurement Contract

As for the legal character of government procurement contract, there have been existing three kinds of standpoints in Chinese theories field. They think respectively that the government procurement contract is a civil contract, administrative contract or mixed contract. Although The Government Procurement Law which passed in 2002 had prescribed that the government procurement contract applied Contract Law, confirming it as a civil contract, the dispute in the theories field hasn't stop. This paper wants to confirm the legal character of government procurement contract in a new way, so as to help the application of law.The paper consists of the preface, the text and the conclusion. And the text is divided into four parts.The first part expounds the general procedure of government procurement and the process of making the government procurement contract. The emphases of the discussion are the original intention of government procurement, the business regulation followed in the development process, and the cause and effect about government procurement contract. So we can research government procurement contract in the context of the whole activity of government procurement. This part includes two aspects:In the first aspect, the general procedure of government procurement is discussed. And the origin and development of the government procurement is introduced in the first place. Government procurement was emerged with the development of nation and social economy, and formed in the long-term of the purchase. The government procurement system was appeared firstly in England, then developed rapidly in all countries and heading for internationalization. We also have a more large-scale government procurement market through the development for more than 10 years. But because the government purchase behavior appears very strong comprehensive property, so no country uses pure Administrative Law to adjust it. Then the concept of government procurement and the composing of purchase activity are introduced briefly. Finally, the general procedure of government procurement is introduced. In this bargain activity, the government has the leading effects. In the whole purchase procedure, there are three stages generally, namely the stage for preparation and summary, the stage for making the contract, and the stage for implementing the contract.In the second aspect, the process of making the government procurement contract is discussed. At first, the important position of the procurement contract in the whole process of government procurement is analyzed. The contract is a connecting link between the preceding and the following in the whole process of the government procurement, all purchase activities are carried on around the contract, so it is the core of the procurement activities. Therefore, the legal character of government procurement contract will produce profound influence to the whole government procurement activity. Then, the process of making the government procurement contract is introduced. The distribution and confirmation of the rights and obligations in the contract is finished in its making process. And this process includes: invite biding, biding, bid opening, evaluation of bid and scaling, and then the contract is signed. And the whole process is followed business regulation completely.The second part mainly studies the different standpoints about the legal character of government procurement contract at home and abroad. By analyzing internal different standpoints, I will point out its missing and shortage.At first, the main foreign standpoints are discussed. Because of the different legal systems, there are different understandings about the legal character of government procurement contract in different countries. In France where administrative contract system flourishingly, the government procurement contract is regarded as a civil contract; in Germany, England, and the United States, the common Contract Law is the basic norm which adjusts the government purchase contract, but still applies some special rules in the meantime. So the government procurement contract has become a kind of special contract which is different from the common civil contract. But we have to admit that, the government procurement system has appeared more and more obvious business orientation in the development process in these nations.Secondly, the local different standpoints are discussed. The first standpoint is that the government procurement contract is a civil contract. The scholars who hold this kind of standpoint have found the equal legal status between two parties in the contract, and the business foundation and civil principle that the contract had followed, but the argument is not enough to discriminate the procurement contract from the administrative contract. The second standpoint is that the government procurement contract is an administrative contract. They think that the government has pubic function, the purpose and source of the funds of government procurement is public, the right to purchase is a public power, the process is known to the public, and even the contract items are drafted by the government itself etc, so they think the government procurement contract possesses administrative character obviously. In this paper, I disprove above aspects one by one. The third standpoint is that the government procurement contract is a mixed contract. They think the contract is a tool for the government to realize its economic and social policy in a business way, as a result it has civil and administrative character in the meantime. But this kind of standpoint can not explain the basic property of the government purchase contract definitely also.The third part analyzes an example about the government procurement contract. Take the affairs of the xx province purchase cars as an example; we will analyze the rights and obligations that involved the rules that applied the relations between the rights and obligations, and the property that appeared in the process of making and managing the car purchase contract. This part consists of four aspects:Firstly, the plan and preparation process of the car purchase is analyzed. At this stage, the government plans and prepares the whole car purchase activity within the government system, adopting administrative means. So it appears administrative character obviously. Since the trade hasn't started and the supplier hasn't involved at this time, so the activity above is internal behavior of the government.Secondly, the process of making the car purchase contract is analyzed. Because these cars are procured through open tender, so the whole process is according to the procedure and request of the Invite Bids and Bids Law strictly, and has not hypostatic distinction with the invite bids process of other business enterprises, which according to the same business rules.Thirdly, the main contents of the car purchase contract are analyzed. In this contract, the major obligation of the selling party is to assure the quality and function of the products; and the major right of the buyer party is to supervise and urge the selling party to implement the contract on time and according to appointment. Concerning other problems in the contract is all solved with equal attitude. Therefore, the relation of rights and obligations belongs to civil property.At last, the supervision of the car purchase by the government is analyzed. The public finance section of that province is responsible for supervising this car purchase, but it is only an exterior supervision and the public finance section doesn't participate in the business activity. So this kind of supervision won't influence the property that the government purchase activity should have.The fourth part is the most important part of the whole text. In this part we will confirm the legal character of the government procurement contract. On the basis of the discussion above, this part makes further argument on the property of the stage of making the contract, implementing the contract, and the property of the succor. At the same time, through the comparison research of related contracts, and the analysis of international development trend, I expound my views that the government procurement contract is a civil contract. This part includes the following five aspects mainly:Firstly, the civil character of the stage of making the contract is demonstrated. As it has known that the making process followed business regulations in preceding part of the text, further argument from three aspects are made again: the two parties have equal legal status though they have different functions in making the contract; there are no essential difference between the government procurement and other enterprises procurement; and the influence of the government in the process will not influent the civil property of the procurement activity.Secondly, compare and analyze the government procurement contract with administrative contract and civil contract. When compare with administrative contract, I will demonstrate that the government procurement contract is not correspond with the judgment standard of administrative contract, so it can't belongs to administrative contract. When compare with civil contract, I will demonstrate that the government procurement contract is correspond with the basic principle (namely freedom principle) and the legal characters of the civil contract, so it should belongs to civil contract.Thirdly, the civil character of the stage of implement the contract is demonstrated. In this stage, though the basic principle, the premise of solving the problems, the special right of government procurement subject etc, we can find that the rights and obligations of the two parties are exercised according to the engagement of contract, but not according to the administrative privilege of government subject. So at the stage of implement, the contract is still a civil contract.Fourthly, the civil remedies are more effective than administrative remedies. This argument launches from some aspects as follows: at first, some foreign remedies are analyzed, and the keystone of the remedies is pointed out; then the domestic administrative remedies are analyzed, and the shortage is pointed out; and then the shortage of administrative remedies is analyzed further; finally, the civil remedies have the advantage of the administrative remedies in supporting the parties'rights is demonstrated.Finally, the international trend about confirming the legal character of government procurement contract is analyzed. Currently the government purchases in many counties are all undertook some policy targets, but this is an affixture mission, the objects and implement of the contract is its carrier, so the policy targets can't change the property of the contract. And along with the internationalization of government purchase market, the local policy targets have already become an obstacle to develop international trade freely. Therefore in the future, the government purchases of all countries will tend to pure commercial trend, and the contract will be also confirmed a civil contract.In a word, the procurement activity has its own regulation and property, anyone that participates in this activity should follow them, so the positive effect of this system can be developed. And in the government procurement contract, the legal relation which in the main status and has predominant function is the civil legal relation, so we should confirm naturally that the government procurement contract is a civil contract.