Study The Legal Nature Of Military Procurement Contracts

Military procurement contract is the contract signed by military procurement department and supplier for the purpose of resources needed by minlitary activity such as materials, projects and services. The legal character of military procurement contract relates to the structure and application of principle of legality of the whole military procurement legal system and has a crucial effect on the construction of military procurement system. As the development of socialist market economy, China's military procurement should gradually change from mandatory supply in Plan Economy Period to marketization of procurement in a market economy. Promoting the reform of military procurement will have a stronger effect on army building and nationasl economy. At the present, it is urgent to provide the standard and protection in legal system. How ever, the definition in military procurement contract is unclear both in theory and in practice. The conception among military procurement contract, gorvenment procurement contract and ordinary civil contract is also unclear. All these factors become the obstruct in promoting the reform of military procurement legal system.This paper begins with the concept analysis of military procurement and government procurement and then give the opinion of the independence of military procurement contract through the comparative analysis of military procurement contract, gorvenment procurement contract, government contract and ordinary civil contract. First, both military procurement contract and gorvenment procurement contract have the private law nature of civil contract. Second, both military procurement contract and gorvenment procurement contract have the administrative nature which the ordinary civil contract does not have. Third, military procurement contract has the stronger public law nature than gorvenment procurement contract. Military procurement contract has the muliple characters such as civil character, administrative character and military character. It reflects the value of economic law and shall define the nature from military economic law, which means it has independent concept and posotion different from gorvenment procurement contract.In the foundation of expounding the value of the independence of the concept of military procurement contract, the paper focuses on discussing the particularity of military procurement contract and the meaning in legislation and in military procurement practice. First, it discusses the military privilege in military procurement contract, including the right of qualification examination on supplier, the right of making standard contract clauses, the authority approve the contract and the authority to supervise contract performance and so on. The military privilege in military procurement contract is the reflection of the character of public law, aiming at protecting the national defense interests. Second, it discusses the restriction of military privilege, including the restriction of parties, procedure, content and form of contract. Third is remedial mechanism of military procurement contract, including selbsthilfe, military and administrative remedy and judicial remedy. It focues on the feature and shortage of remedial mechanism of military procurement contract.In the foundation of analysing the concept and character of military procurement contract and comparing with the experience of other countries, the paper points out the shortage of this field in theory and in legislation and offeres the relvent proposal of improving China's military procurement legal sytem.