Administrative Contract Dispute Resolution Mechanism

As an emerging administrative method, the administrative contract has obtained the universal utilization in the national management; however, the law theory in China has a great argument about the administrative contract dispute solution system, and it also causes relatively chaotic to the administrative contract dispute solution in practice. The western developed country administrative contract dispute solution system is relatively perfect in the theory and practice. As regards the dispute solution system of the civil law and the prominent problem of the administrative contract dispute solution system in China, the essay will analyze and discuss the theory of the present administration contract dispute solution system and make some proposals to the legislative system and the relevant system of the administrative contract dispute in China, in order to provide some consults to the further research in the administrative contract dispute of our country.There are some arguments on the initiation of administrative contract in modern law field. One opinion claims that the Anglo-American legal system country has not division between the civil contract and the administrative contract; in our country, there should not be the administrative contract in theory or practice. Another opinion argues that the pure high power administration already could not satisfy the needs of administration along with the emerging national goal view of the modern welfare state and paying administration. The administrative contract already obtains the universal utilization as a management model with the softhearted elasticity which the administrative relative person is glad to accept; Moreover, the administrative contract is also a new management way by which the administrative body exercises the administrative authority. As regards the obvious difference with the common civil contract, the administrative contract shall not be denied or ignored.As an emerging contract, the administrative contract does not have no barriers in the fulfillments. It also has the certain disputes and shall be clearly catalogued on the responsibility of the administrative contract dispute : Firstly, because administrative body overemphasizes the superior profit power on the conclusion and fulfillment of the administrative contract, the administrative body shall undertake the breach responsibility of the disputes in the fulfillment of the administrative contract ; Next, the administrative relative person shall take the breach responsibility of the disputes in the fulfillment of the administrative contract when he does not sign the contract according to expectation goal of the administrative body; the two parties shall share the breach responsibility of the disputes in the fulfillment of the administrative contract due to some reason such as force majeures, the accident and so on.There also exist some arguments about the dispute solution system because of different attitudes to the administrative contract in theory and practice. In reality, our country has two kinds of parallel solution system. First, the contract parties deal with the administrative contract through the civil dispute way, such as consults, mediation, arbitration and the civil action way; Second, the contract parties deal with the administrative contract through the administrative dispute way, such as administrative reconsideration and administrative action. These two ways respectively have the advantages and disadvantages.There are two big legal systems: the Anglo-American Legal System and the Continental Legal System. The two legal systems provide excellent examples in the administrative contract dispute solution system. British and the United States are the representative countries for The Anglo-American Legal System, and France and Germany for the Continental Legal System. Through the introduction of the administrative contract dispute system in British, the United States, France and Germany, the essay will put emphasis on the relative analysis of the administrative contract dispute system between the two big Legal System, in order to make preparations for the design of the administrative contract solution system in China.The administrative contract dispute has the character of complexity and the multiplicity, and the dispute solution system also presents diversification. It is especially necessary to construct the Chinese characteristic administrative contract dispute solution system. Its dispute solution system should be the trapezoidal structure, namely, the dispute shall be solved through administrative contract parties in advance. The ADR system in the present civil dispute solution system may be introduced to the administrative contract dispute solution field. The ADR system called 'the vicarious dispute solution system' mainly solves the administrative contract dispute by the way the contract parties themselves or respectively choose their acceptable person and organization. Thus, the contract parties shall not only keep on good terms with each other but save time and property. Next, the contract parties deal with the administrative contract dispute through the inside solution way of the administrative body. The present Administrative Reconsideration Law stipulates that the administrative relative person shall request the administrative body to change and cancel the illegal administrative action. The Administrative Reconsideration system proposes the right solutions with the self- surveillance and the relief to administration relative person for the solution to the administrative illegal action of the administrative body inside themselves. The practice has proved to be feasible; however, there are some problems to be improved. The Administrative Reconsideration Law shall be revised, and the administrative contract dispute shall be introduced to the Administrative Reconsideration Law. Next, the administrative contract dispute shall be solved through the jurisdiction body mainly the people's court. The present Administration Procedural Law has no stipulation about the administrative contract dispute, and the law field has great arguments about whether the people's court has jurisdiction over the administrative contract dispute. The people's court is an organization to solve all sorts of disputes; therefore, it shall have the jurisdiction over the administrative contract dispute. The present Administration Procedural Law has no stipulation about the jurisdiction over the administrative contract dispute; it is so with the relevant system. It is inevitable to revise the present Administration Procedural Law to consummate the administrative contract dispute solution system of the people's court.