The Discussion On Administrative Priority In Administrative Contract

The administrative contract as a kind of administrative action which fused the civil law contract spirit, already became the best choice to realize the administration goal and the public interest in more and more domains. Precisely based on this realistic condition, the administrative contract fundamental research appears watershed. We regret see that the fundamental research on the administrative contract in our country already obviously could not satisfy the need of the practice. Practice urgently need the administrative contract fundamental research more deepening. The Administrative priority is the core question in the administrative contract theory, study it thoroughly is the most important thing in the administrative contract fundamental research.The original intention of this article is to introduce, compare and induce some existing viewpoints on the administrative priority in the administrative contract, in this foundation proposed some my own viewpoint, I hope my article is helpful to the study of the administrative priority in the administrative contract.The article altogether is divided into three parts as follows:The first part elaborated the basic question of the administrative priority in the administrative contract. This part is divided into four sections to discuss. First section mainly introduced the concept of administrative contract, emphatically introduced the viewpoints of the western developed country and our country scholars, proposed my viewpoint of the administrative contract concept. Second section limited the concept of the administrative priority after introduced the administrative contract concept. Third section elaborated my viewpoint on the nature of the administrative priority in administrative contract, the significance of this question lies in determined what kind of manner we should have to it. Fourth section elaborated the performance of the administrative priority in administrative contract, mainly has initiates power, supervisory authority, sanction power and so on, It concreted the concept of administrative priority in administrative contract.The second part elaborated the right question of the administrative priority in the administrative contract. This part is divided into three sections. First section elaborated its right foundation first lies in the safeguard of the public interest, the administrative contract basic goal is to realize the public interest, the solution to the conflict of the public interest with the personal interest must persist the public interest first principle in the administrative contract . Second section elaborated the right foundation of the administrative subject enjoyed the priority but not other main bodies in the contract ,explained the right of the public interest represented by the administrative subject. Through the comparison of the planned economy system and the market economy system difference, the administrative subject and the administrative relative person the benefit sought in the administrative contract differently explained this question. Third section expounded the administrative priority right lies in the reasonable limits public interest with the personal interest position step, realizes double wins under the public interest superior principle. The administrative contract took the process of consultation into the administrative action domain, enabled the personal interest to obtain more respects in the administrative contract, thus in their process of positively pursuing the personal interest, realized the public interest. This process has very wide difference with the traditional administrative action. The administrative relative person no longer is negative, this causes the relations between the administrative goal and the administrative relative person more relax, changes harmoniously, more conforms to the market economy request of the government function.The third part elaborated the legal rules and regulations method of the administration priority. This part is divided into three sections to discuss. First section mainly introduced the main question of the administrative priority in our country. This minute two aspects elaborated, on the one hand is the lack of the unification laws and regulations stipulation, even has the contradictory stipulation in the legal laws and regulations. It is disadvantageous to the practice of the administrative contract, lack the basis to the conflict in practice. On the other hand is the administrative priority is abused in practice sometimes. Mainly includes not right exercises the priority and must exercise but does not exercise two kinds of situations. Regardless of which kind of situation, it enables the public interest not to be able to obtain the safeguard, enables the superiority of the administrative contract not to be able to obtain, even be harmful to the public interest realization. The second section analysis the main reasons of the questions of the administrative priority has stated before ,first it is because the lack of the basic principle of administrative contract, it is also because the administrative subject has not been able to differentiate the public interest with the personal interest correctly, confuses two boundaries, causes the authority to abuse. The administrative subject in administrative contract dual status also is a reason of the question. On the one hand, the administrative subject is one of contract litigants, on the other hand, it also is the spokesman of the public interest, this causes the administrative subject to confused personal benefit and public interest .Third section elaborated the legal rules and regulations way to make the administrative priority in the administrative contract performs effectively. First introduced the different viewpoints of the scholars on the legislation to the administrative contract in the foundation, and should carry on the unification legislation to the administrative contract to limit and rule the administrative priority in administrative contract. The administrative priority should not only be stipulated in the substantive law but also in the procedure, safeguards it is not to be abused. In the procedure aspect, mainly introduced the limit through the procedure rule to the administrative priority, so the administrative relative person can be able to obtain with the administrative subject equality legal status more. The procedure aspect mainly introduced the consultative system and the hearing system, beforehand announced system, the fair competition system, the showing reason system and so on. Simultaneously pointed out we should safeguard the administrative relative person's right which is a reverse restriction of the administrative priority. Although the explicit legislation, certainly can not completely avoid the question and the dispute in the practice, but actually it is the basis of the judicial apparatus solves the problem and the dispute.