A Study On The Legal Responsibility Of Administrative Organs In Government Franchise Agreement

With the continuous deepening of Public-Private-Partnership, the importance of the government concession agreement has continued to be highlighted, but in practice the case of violation of the agreement continues to occur. In particular, the administrative organs are both parties to the contract, but also the supervision and management, double identity is endowed with the rights and obligations of administrative organs. If they cannot clarify their role, they will dislocation and abuse of administrative advantages and benefits. As the modification of the “administrative procedural law” stipulates the government concession agreement in action, but with the substantive law and procedural law are incomplete, the experience of practice and the theoretical research are deficient. Especially to the research and legislation of legal responsibility of administrative organs is not sufficient, resulting in the practice of administrative organs in violation of government concession agreement disputes, it is difficult for the court decision what kind of liability of administrative organs, the rights of both parties cannot be guaranteed.The first part begins with an analysis of the dual attributes of the government concession agreement, then according to the characteristics through the analysis to the case in practice, the types of default of the administrative organ divided into based on "contract" and "administrative". The former is mainly to assume the responsibility of contracting and breach of contract, the latter mainly should assume the responsibility of compensation and administrative tort.The second part makes a detailed discussion on the four kinds of responsibilities from the angle of the theory basis, the principle of liability fixation and the way of undertaking. The substance of the contracting parties in the government concession agreement is the concurrence of the liability for fault and the administrative tort in the civil contracting parties. Liability for breach of contract is the most important responsibility of the administrative organs, damages is the most important way to bear the responsibility. It should be the same as the civil liability for breach of contract, applying the principle of no fault liability, compensation for direct and indirect losses. Compensation is based on the needs of the public interest to exercise administration excellent benefit right results, due to the amount of compensation is less than the indirect loss and direct loss, Therefore, it is necessary to strictly limit the public interest to ensure that the administrative right to benefit is not abused. The administrative tort liability is the result of the illegal exercise of administrative power by the administrative organ. The abuse of executive administration excellent benefit right is both administrative tort and contract breach that concurrences of administrative tort liability and liability for breach of contract. When the administrative organ that, in violation of the statutory procedures for the exercise of administration excellent benefit right, administrative organs cannot be ignored because of procedural flaws, but to accountability for the program illegal, when necessary, to punitive damages.The third part focuses on the legal liability of the administrative organs in the compensation for damages and the application of the law. The differences of different damage compensation in practice are analyzed and rarely resolved disputes, the deficiency of the court in the cognizance of damage compensation, refers to the adverse consequences of the damage compensation system to the government concession agreement. The procedure code and the value of the government concession agreement are analyzed, and the adverse consequences of the process are pointed out.In the fourth part, the paper puts forward some suggestions for the problems which are reflected in the practice. Clear administrative organ responsibility path to facilitate court trial; through the unification of breach of contract and tort damage compensation standards to protect their rights and interests, reduce disputes; construction of administrative procedures, specifications, to make up for the lack of existing programs.