On The Judicial Remedy Of Govenrment Procurement Contract Disputes

The government procurement system is establishing and perfecting continuouslywith the development of economy and society.With the development of the system,the government procurement contracts occur with increasing frequency and is usedmore and more widely, which deeply affect the achievement of the administrativemanagement goals of the administrative subjects, the rights of the administrativecounterparts, and the realization of public interest. At the same time, the academicworld pays more attention to the government procurement contract, especially to thedetermination of the nature of government procurement contract and the way ofremedy.The contract is a legal means often introduced and commented in the private law,but with the continuous development of administrative law, administrative contracthas become an important way of administrative act, the contract in administrativearea is often called administrative contract. The administrative contract is developingwith the development of economy, democracy and the welfare state, and it’s differentwith civil contract in the subjects, the procedures of concluding contract, the rightsand obligations of both parties, purposes and the relief forms. In the article, thegovernment procurement contract is a contract which the purchaser or theprocurement agency, using the financial funds and following legal means, signs withthe suppliers to acquire goods, projects and services by purchasing, leasing,entrusting, hiring and other ways. In the academic world, the nature of governmentprocurement contract is regarded as administrative contract, civil contract or contractof mixed nature. Because one party of the contract is specific, the source of funds ispublic, the purpose of the contract is to fulfill public welfare, and the procedure ofconcluding is public and strict, the government procurement contract is different from civil contract and administrative contract. Therefore, according to its characteristicsand the relevant provisions of the laws in China, the government procurementcontract is defined as an administrative contract with some same distinguishingfeatures of the civil contract.As for the remedying methods of the government procurement contract, there areinquiry, negotiation, query, notary supervision, mediation, administrative review andlitigation in different countries and regions, and the litigation procedures can bedivided into civil procedure and administrative litigation procedure. According to theregulations of the Government Purchase Law of our country, the remedies ofgovernment procurement contract are mainly inquiry, query, complaint,administrative review, administrative litigation and so on, but at the same time, theGovernment Purchase Law stipulates "The Contract Law applies to the governmentprocurement contract ". Therefore, there are controversies under the conflictingregulations in the current law of the judicial remedy means for the governmentprocurement contract. To some extent, the current legal provisions have broughtconfusions of the application of remedy means, complications of the mechanism ofdispute settlement, inadaptability of the civil contract system. In practice, there aresome cases show that the current judicial remedy of government procurementcontract has some problems, especially for the lack of the suspension system and theaction of public benefit of government procurement. The existence of the conditionshas brought some negative effects to the healthy and orderly operation of thegovernment procurement contract system, the achievement of the goal ofadministration, and the interests of the parties and the public.Therefore, this dissertation puts forward suggestions to perfecting judicialremedy ways of government procurement contract, based on the introduction ofremedy ways in other countries and regions, aiming at promoting the development ofgovernment procurement contract dispute remedy system. On the one hand, weshould perfect the revocation proceedings, making the query and complaint asdiscretionary preceding procedure of administrative litigation, and giving the court power to suspend the bidding procedure or the execution of purchase contract basedon the inquiry. On the other hand, we should form the action of public benefit ofgovernment procurement, defining the plaintiff, the burden of proof, costs, incentivesand the system to prevent indiscriminate lawsuits.