On The Privilege Power Of Government In The Administrative Contract

As one of significant administrative methods, public contract is popular on today's administration of government. In china however, it seems to be too vague to be practical used in varies fields. There is a special theory with china's administrative contract, in which, it proposes that the government enjoy a wide range of super powers in a contractual relationship with the non-government party, summarized as administrative prior power, in the name of public benefits.It is worthy to further more. As a system full of the spirit of cooperation, administrative contract is different from other administrative behaviors, in which, the administrative power is the guarantee to realize executive aims. But the contractual relationship emphasizes equality. On one hand, all the parties of contract should be restrict equally to practice their duties which have been written down in the contract. But as a super power of government, the administrative prior power would be incompatible with it; on the other hand, according to the conclusion of comparative method, there are no such administrative prior rights as China in the public contract systems in German and common law states. As to France, although administrative prior power was highlighted in the public contract system, there is an outstanding premise: the principle of economic balance. But China's national compensation system could not achieve this level of protection, so it is not wise to transplant French law into China in this way.Actually, public benefits could be protected and realized without administrative prior power theory. According to inherent principles and spirits of contract system, rights and duties would be allocated reasonable between both parties of administrative contract. Procedure should be strengthened in some exemptions from obligation and duties for abnormal actions targeted on emergency and public benefits. Cooperation is the true value of administrative contract, instead of another form of command.