The Improvement Of Chinese Government Procurement Relief System Under The Framework Of WTO GPA

Government procurement system is a new course in the field of administrative law. Itmeans that state organs, institutions and other public authorities can spend financial funds tobuy projects, products and services by means of contract. Government Procurement Law isthe first Chinese government procurement laws and regulations enacted in2003. China hasstarted to join in the negotiation of WTO Sub-protocols—GPA in2007. Therefore, the urgentissue is to make existing laws and regulations in accordance with GPA. To improve Chinesegovernment procurement system, State Council has enacted the draft of governmentprocurement implementation regulations. However, it has obvious conflicts with GPA that thedesign of government procurement relief system has obvious conflicts in regulations with theGPA demands to the Contracting States domestic relief system. Meanwhile, these twosystems still completely disaccord with each other in inner spirit. Therefore, it’s necessaryto connect with GPA’s external standards to modify the conflicts between Chinesegovernment procurement relief system and GPA’s regulations. What’s more, to realize thebalance between public and personal interest under the guide of Chinese governmentprocurement system, it’s still essential to abide by GPA’s inner spirit and learn developedcountries’ government procurement legal standard and practice. Thus, it’s helpful to makegood proposals for Chinese government procurement relief system.The thesis is composed of three parts to discuss the above questions.In the first part, involving concrete standard and related legislation files of “InterimMeasures” before the issue of “Government Procurement Law”, the transform ofunderstanding the legal nature of government procurement in the legislative process ofChinese government procurement will be discussed by means of dogmatic of law. Thistransform is from public law under the consideration of public and private (interim system) tothe balance between public and private (draft) then to completely private (the amended draft).Meanwhile, combining with concrete standards of “Government Procurement Law”,Government Procurement Law tends to completely private in the following three aspects.Firstly, the subjective status of the party tends to civilize. Secondly, the regulatory authority of financial sectors tends to reduce. Thirdly, procurement relief system turns to private law. Itseems that this complete private legislative selection doesn’t conform to governmentprocurement system which should own some legal nature of public law. To concretelyunderstand government procurement system with some legal nature of public law how to takeinto action, the author of this thesis particularly selects French government procurementsystem as an example for the reform of Chinese system.The second part cites newest French laws and regulations and takes famous casesconcerning the development of government procurement system for instance to individuallyintroduce both French government procurement’s contracting system and its relief system aswell as the system of contact execution and its relief system. The introduction of contractingsystem and the system of contact execution not only can make the new governmentprocurement laws and regulations after the reform of French government procurement systemin2006further understood but is beneficial to the reform of Chinese government procurementsystem. Meanwhile, it’s good for better understanding relief system itself. French governmenttakes measures of litigation to realize relief in contracting stage, including “PrecontractEmergency Procedure”（le référé précontractuel）,“Recourse for abuse of power”（lerecours pour excès de pouvoir）,“declare the invalidation of the contract”（la déclaration denullité）,“Recourse of full jurisdiction in contesting of the effectiveness of administrativecontract”（le recours de pleine juridiction en contestation de la valité d’un contratadministratif）,“contract emergency procedures”（le référé contractuel）and relativecompensation system. To relief system in contact execution stage, it can be solved by“dispute amicably settled committee”（les comités consultatifs de règlement amiable desdifférends ou litiges）as well as settled by litigation which mainly concerns on liability issues.The third part concerns on government procurement relief system itself. To reliefsystem in contracting stage, above all, GPA’s requirements for contracting states’ domesticrelief system will be analyzed. Then, the author of this thesis will point out that theintersection and joint of challenge procedures and complaints procedures, the scope of thosesubjects who mention the controversy and the independent procedures of examining authority,all of them have obvious conflicts with GPA’s requirements. Therefore, Chinese relief systemin contracting stage should be modified according to GPA’s requirements. At last, with thespirit of GPA to instruct relief system, involving the introduction of French relief system in contracting stage in the second part of this thesis, Chinese relief system in contracting stagewill be improved in the selection of relief mode, procedure of examining organizations,practical rights of examining organizations and compensation system. To relief system incontract execution stage, involving with the introduction of French relief system in contractexecution stage in the second part of this thesis, For one thing, the possibility and limit ofprocurer’s executive power unilaterally intervened in the practice of Chinese contract willbe analyzed. For another, through analyzing existing administrative relief methods and civilrelief methods, this thesis will point out the shortage of relief system in contract executionstage. Moreover, administrative contract relief system should be set up in Chineseadministrative relief system. Administrative contract relief system needs to deal with ordinarycontract dispute as well as fairly analyze responsibilities of mutual parties and review thelegitimacy of specific administrative acts and judge whether these acts are suit for principle ofproportionality.In a word, through analyzing GPA’s requirements for contracting domestic reliefsystem, the author of this thesis is inspired by French government procurement’s contractingsystem, system of contract execution and its own relief system. Meanwhile, on the basis ofChinese existing government procurement laws and relative relief regulations, this thesis putsforward its own thinking and recommendations which make Chinese governmentprocurement relief system not only can be in accordance with GPA’s requirements but alsocan better seek the balance to secure public interest, satisfy public demands and protect thebenefit of supplier.