Research On The Privilege Of Administration In The Administrative Contract

In the western developed country, some ideas such as welfare state, the paying administration and so on, have already been rooted in the hearts of the people; the important purpose of administration is to meet the increasing demand day by day of service. During the process of management in country, social utility and public service activities, except administrative organ makes the decision unilaterally in administration's behavioral form, still adopt and consult with party, requesting for agreement to party establishes the administrative legal relation, this is the administrative contract.The administrative contract is an important practice of expanding the administrative participates and promoting the administrative democracy, because it is belong to the combination of administrative power and market economy way, it is different from both the general administrative behavior and the ordinary civil contract. Yet, the administrative contract as a new thing has not reached the common understanding in theory in our country today. It is the same as to the privilege of administration. In the traditional administrative contract theory the administrative organ not only have the prior power of administrative subject in the administrative contract, but also have the right to implement supervise checks even folk prescription modification, recesses the contract to the contract, but the argumentation to the prior power of administrative subject structure is relatively insufficient. Widely application of the administrative contract requires legislating of the administrative contract, setting up effective administrative contract restriction mechanism, especially to make effective related rules and regulations of the enforcement of the prior power of administrative subject, carry on system that administration of justice check to administrative contract at the same time.In the concluding of administrative contract and performance, folk prescription cancels the contract, compensation for breaking the contract, losses are compensated, punish the other side of looks in breaching, and the interested parties all concern the party's vital interests to a series of disputes such as bid, objection of winning a bid, and closely linked with public interests. These behaviors need standardizing badly. Since administrative subject enjoying the prior power of administrative subject with spin-off administrative power therefore it is necessary to strengthen the protection of interests of the other side of contract, the structure of enforcement to excellent benefit right. On one hand it is necessary to define scenically of the ranges and limits of public interests, prevent abusing the prior power; On the other hand it wants to norm on the procedure of enforcement to the prior power of administrative subject, guarantee the rights with relative equilibrium of both sides.This text is formed by four parts together. Part one, we Introduce the administrative contract and the basic conception of the privilege of administration in the administrative contract briefly, the reason of existing of administrative privilege also has been analyzed; Part two, we introduce the situation of the France's administrative contract, so have a more overall understanding to administration's privileged theory; Part three, we discuss the administrative privilege from practising aspect, Existing of the prior power is recognized in judicial practice, but the application has been strictly limited, at the same time it is far from a unified understanding of different courts in practice;Part four, The characteristics of the administrative privilege determines it is necessary to make some rules and regulations to protect the interests of the relative side of the contract. In this text we analyze that in order to ensure the properly exercise of the administrative privilege, we should control it from substantive and procedural aspects.