Administrative Contract

With the development of democratic tendency and the emergence of aim viewpoint from new types of countries such as welfare countries, giving administrative ones, administration function will expand to the aspect of the active giving from negative one. In order to the above-said purpose; the varieties of measures should be employed. Under this background, administrative contract appears and is widely used because it reflects the tendency of administrative private law. In the meanwhile, like other administrative behaviors, administrative contract also needs to bring into the line of with the extent of law adjustment.On the premise of existence of administration; the author explores the same and different characters of nation's administrative contract regulations between General Genealogy of Law and Civil Genealogy of Law, several special issues of China's administrative contract regulations connected with law practice, and legislation of administrative contract so as to provide available measures for existing problems in practiceFirst of all, the author studies the characters of administrative contract. At the beginning of the thesis, the author introduces the development situation and their respective characters of administrative contract between General Genealogy of Law and Civil Genealogy of Law, and points out the essential reasons of their differences that in the countries of Civil Genealogy of Law, there is a definite idea classifying public law with private law, and the establishment of administrative contract regulations is based on the preferential consideration of public interests, while in Western countries, the establishment of administrative contract regulations always puts public interests into the same position with individual interests, not preferentially considering public interests. After the character analysis on administrative contract of Western countries and contrast with detail administrative behaviors and private law contracts, the characters of our administrative contract are drawn as follows: 1. the duality of administrative subject; 2. the meltingness of public interests in administrative contract; 3. the contents of administrative contract show consensus and mixture, but the rights and obligations of both parties are not reciprocity.Secondly, the author studies several relevant issues concerning China's administrative contract law practice. Based on the analysis of administrative contract in the western countries, the author points out that because there is a big difference between foreign administrative subject theory and our administrative subject one, therefore, learning from the Western countries, we should draw great attention to the difference of theory of administrative subject. Then, in the law practice of our administrative contract regulations, the balance of public interests and individual interests should also be specially considered. And then, as for our actual situation, the author explores the establishment of remedy systems of our administrative contract.Thirdly, inspecting and composing our administrative contract legislation, the legislative defects of our administrative contract are the followings: 1. legislation isdecentralized, has not formed a complete set of system, the reasons resulting in the lack of systemization of our administrative contract lie in seriously divorcing between theory and practice; 2. stipulation is too general and entity contents are excessive, but procedure's contents are not enough; 3. excessively putting civil contract theory into administrative contract, it is a conflict with the nature of administrative contract; 4. in legislation, there is serious administrative order atmosphere. The imbalance of the rights and obligations of both parties in legislation easily leads the administrative contract to become administrative order, also to have influence on the function of the administrative contract; 5. no stipulation on the settlement of dispute. Then, the differences of administrative contract in different countries have many compli...