Administrative Contracts And Dispute Settlement Mechanism

The extensive application of government contract in the administration has given rise to continuous administrative contract disputes. In the studies of administrative contract theory, there are still many disputes on its definition, characteristics and classification methods in the academic circles. In practice, the imperfect relevant laws and regulations and the lack of a unified, comprehensive administrative contract dispute settlement mechanism have lead to confusion on the application of the law. By the means of learning and analysising the previous achievements and refering to some practical problems in trial, the paper points out the shortcomings in the administrative contract dispute settlement mechanism and put forward some moderate proposals.The first chapter has briefly discussed the causes of the contract disputes, analysised the background and significance of the contract and given a theoretical base of the studies in four aspects.The second chapter discusses the necessity of the separation between the administrative contracts and the ordinary civil contracts. Based on the previous studies, the author has re-defined the range of the administrative contract, which contains three forms, the contracts signed by administrative subject or others, and by the administrative subject and its subordinate institutions and civil servants. This chapter focuses on the six characteristics of the administrative contract,the subject, the purpose, the legal relations, the consensual sex, the benefits and rights of the subject, and the content.In the third chapter, the author introduces the classification of administrative contracts in the the western countries, and then suggests that the administrative contract should be divided into "equal contract" and "unequal contracts", taking Germany for reference and briefly discusses the main types of administrative contracts in the practice.The fourth part has analysised the definition, main characteristics and the function of contract dispute settlement mechanism. Meanwhile, it introduces the mechanism adopted by two major developed countries, France and Germany. Focusing on the mechanism in China, it also points out the main reasons why China's current Litigation outside the relief and Litigation Relief could not work well.In the last chapter of the article, the author points out the current shortcomings of China's administrative contract dispute settlement mechanism. It includes the ownership dispute of the mechanism, the blockage of the administrative relief channels, the inappropriate applicableness of the contract in practise, and the restriction of the contract's implementation by the unilateralism of the administrative lawsuit. At the same time,it puts forward several suggestions to improve its system as well:Firstly, the government should establish a unified administrative contract legal system which has some directive significance and integrate the administrative contract disputes into the scope of administrative litigation. Meanwhile, it should permit the application of some parts of the Civil Procedure Rules. The second way is to extend the case scope of administrative litigation and to give the Chief of the main plaintiffs qualifications to participate in administrative proceedings. Thirdly, the Supreme People's Court sould provide better guidance for administrative contract litigation, and the national standards for the case to the administrative contract should be unified. The article has also given a detailed description for several crucial parts, like the mediation, reconciliation, trial duration, prescription, the lawsuit against the public interest and the lawsuit raised by the administrative subject. Lastly, the author discusses the proper path and method to improve the administrative contract dispute settlement mechanism.