The Research Of Configuration And Guarantee Of Right And Obligation In Administrative Contract

Administrative contract is the product of the changes of function and structure inadministrative law. It is the organic combination of power factor and contractual factor,Only the two factors achieve a certain balance, can symbiosis be realized in administrativecontract, coinciding the substance of administrative contract and making administrativecontract play its proper function. In order to ensure the dynamic equilibrium of the twofactors, the two variables must be controlled within a certain range, can not be biased.Power factor mainly means that administrative contract aims to public interest and administrative purpose, manifesting concretely the necessity and use of the contractualprivileges of administrative organ; contractual factor shows the admission of theexpression of private interest and the pursuit of free will. In view of the priority of publicinterest and administration, contractual factor can only exist in the limited space,expressed as the contractual consensus of both sides of administrative contract. The limitof existing space can be completed by improving the quality of consensus, to increase theproportion of the contractual factor comparing to the power factor and to achieve thebalance of the two factors. The theory of communicative action provides a discussingsituation and the idea of achieving consensus by intersubjective communicativerationality for high quality of consensus. The delineation and balance of the space ofpower factor and contractual factor can be implemented from the level of the specificsystem by configurating rights and obligations of the administrative contract: Recognizethe limited privileges of the administrative organ according to public interest andadministrative purpose, to designate the scope of power factor; create counterparty’sParticipating Rights to outline the outline of the existence of the contractual factor. Itmeans improving the quality of consensus through the exertion of participating rights andfull self-expression by the counterparty.To achieve this configuration of the rights and obligations, we need independentprocedure to guarantee the consensus on the basis of equal dialogue and full expression,and norms of institutionalized procedures to control the exercise of contractualprivileges,for provide the counterparty the opportunities of equal dialogue and full activeindependent expression with administrative organ. In addition, it requires suitablemechanism of judicial review to resolve disputes of administrative contract, to protectconsensus as well as executive mobility of the administrative contract.This article consists of four parts. In the first part, I describe two theoretical picturesof administrative contract: the fit and the betrayal of the concept of contract, theintegration and the change of traditional administrative law, revealing the administrativecontract as the contradiction community of power factor and contractual factor, and then I explore the possibility of the symbiotic of the two factors, introducing the theory ofcommunicative action to enhance the quality of consensus, and achieving this symbiosisby configurating the administrative contractual rights and obligations from the specificinstitutional framework. In the second part, I analyse and assess the main modes ofconfiguration and guarantee of the administrative contractual rights and obligations. Onthis basis, considering the China’s background, I reflect and reconstruct our mode. In thethird part,I reflect our framework of configuration of rights and obligations in reality, andpropose to recognize the limited contractual privileges and the counterparty’sparticipating rights. In the fourth part, I explore the mechanism of the implementation ofthe rights and obligations, including self-conscious procedural mechanisms and judicialrelief mechanism. The judicial relief mechanism of administrative contract should reviewthe legitimacy, rationality, contractual and consensual of both parties’ behavior andpromote the role of mediation. The fifth part is the conclusion, pointing out that indifferent types of administrative contracts, the proportions of power factor and contractualfactor are shifting, but there is some dynamic functional equilibrium between the twofactors, their proportions or the applicable rates depends on the specific administrativepurpose, but there is always the consensus. Increasing the proportion of the contract factorwith the high quality of consensus is a consideration of realizing the symbiosis of twobased on their equilibrium.