On The Relative Rights Of Persons In Administrative Contract And Its Protection

Administrative contract is the inevitable outcome of the transformation from traditional administration to modern administration. For its rich connotation and outstanding functions, administrative contract is widely applied to the realm of administration. As a softer and more flexible way of administration, administrative contracts, though different from civil contracts, share the qualities of contracts and thus should still be governed by fundamental principles and rules applicable to civil contracts to some extent. Due to the inequality of the parties in an administrative contract, administrative bodies may abuse their administrative powers; the rights and interests of individuals may be prejudiced for the sake of public interests. Accordingly, for the purpose of restricting administrative powers, safeguarding the rights of individuals and protecting the consensus of contractual parties, it is necessary to provide for the substantive rights of individuals and establish due process. Remedies in advance prevent possible damages to individuals. They indicate a new level in protecting individual rights because the purpose of administration is better realized by protecting the rights of individuals. Other remedies including administrative review and judicial review should be established. Particularly, judicial review is the most effective and should become the ultimate and primary method. However, there are no special legislations on administrative contracts in china, and more theoretical research and explorations need to be done. The lack of legislation and unavailability of legal remedies have been obstacles to the adoption of administrative contracts. In conclusion, it is necessary to clarify the legal status of administrative contracts and protect the legal rights of individuals so that the mechanism of administrative contracts is operated in a legal, orderly and effective way.