Administrative Contract Procedures For Control Of The Privilege

The administrative contract is a soft administrative model. But in our country, the region of law has divergence for the nature of the administrative contract. Some people deny the existence of the administrative contract for the following two reasons: the contradiction between the equality of common contract and the inequality of the administrative contract; the contradiction between the administration according to law and the freedom of contract. But in fact, the theory of law must change according to the development of society. With the development of "giving administration" and the expanding of administrative department' s discretion, people' s viewpoint for the concept of "the administration according to law" and "contract" is changing essentially. The existence of the administrative contract is reasonable in practice and theory.The administrative contract is a legal agreement between the administrative department and the private party. The purpose of this contract is protecting the public welfare. It is useful for the improvement of administrative efficiency; the accomplishment of administrative purpose; the protection of people' s right; the remedy of legislation' s defect; reducing the cost of judicial; the regulation of administrative power; democracy of market management.The administrative contract is different from the civil contract. The subject of the administrative contract is unequal. The administrative departments have the privilege of the administrative contract. The privilege of the administrative contract is a mandatory power that the administrative departments have for the public welfare. It include the following powers: the decisive power of the administrative contract' s target; the compulsory selective power to the private party; the adjustable power of the contract' s content; the power to rescind contractunilaterally; the supervisory and guided power of the administrative contract; the sanction power; the power to interpret the contract.For the existence of the privilege of the administrative contract, it' s dangerous that the administrative contract become the administrative command. So, we must control this power. There are two power' s control models. The first is the entity' s regulation. The second is the procedure' s regulation. With the development of society, the administration is changing from the negative administration to the positive administration. For the society' s changing, the law must give the administrative departments more discretion to fit the society' s changing. In comparison with the entity' s regulation, the procedure' s regulation is more flexible. It permits the government to select. For this reason, the procedure' s regulation to the privilege of the administrative contract is represents the general trend.The procedure' s regulation to the privilege of the administrative contract must carry out the following fundamental principles: the priority of public welfare; the administration according to law; the principle of proportionality; the priority of justice, give consideration to the efficiency; the principle of participation. At the same time, it should have the following systems: the system of transparency; the system of hearing; the system of giving reasons; the system of contracting choice; the system of participation retaining; challenge system; the .system of function' s separated.