On The Perfection Of Rignt Relief System In Chinease Government Procurement

Perfect right relief system of government procurement can guarantee the healthy operation of government procurement system and contribute to the practical implementation of basic rules prescribed in the law of government procurement. However, in the government procurement field, there are defects in the legislation and difficulties in the implementation of law. Such defects and difficulties result from the chaotic logic and incomprehensive system:the first problem is the incomplete right relief stages. Our right relief system of government procurement focuses on the right relief in the contract conclusion stage and ignores the right relief in the contract performance stage. The second problem is incomprehensive right relief parties. Our right relief system of government procurement focuses on the third party’s right relief and ignores successful supplier’right relief and purchaser’s right relief. Government procurement contract has double natures, that is, the contract is administrative in the contract conclusion stage and is civil in the contract performance stage. Therefore, it is imperative to divide the government procurement contract into two stages:contract conclusion stage and contract performance stage.In the government procurement, the most important parties are as follows:the third party、successful supplier、purchaser. In the contract conclusion stage, the disputes between the third party and purchaser is administrative in nature,which means that right relief procedures and methods in this stage is also administrative in nature. At the same time, in the contract performance stage, the disputes between the successful supplier and purchaser is civil in nature, which means that right relief procedures and methods in this stage is also civil in nature. Starting from the point of contract conclusion stage and contract performance stage, we can establish scientific government procurement right relief system which is the combination of the third party’s right relief system、the successful supplier’s right relief system and purchaser’s right relief system. Such a scientific government procurement right relief system contributes to the fulfillment of multi values orientation. This thesis’s shining point lies in the combination of two right relief stages and three right relief parties.Chapter I is on the significance of the perfection of the government procurement right relief system. To start with,this thesis inquires the theoretical significance, including the necessity of right relief、the necessity of governmental behavior right relief and the necessity of government procurement behavior right relief. Then this thesis analyzes the practical significance, pointing out that government procurement has four primary functions:to strengthen the market competition、increase the efficiency of the public capita、reduce the governmental corruption and regulate macro economy. However, there are many flaws in practical government procurement, which prohibit the fulfillment of government procurement’s functions. What’s more, existing government procurement right relief system is unable to resolve these flaws and to rebuild the government procurement’s functions. By combining theory with practice,we can draw the conclusion that it is necessary to perfect the existing government procurement right relief system as soon as possible.Chapter Ⅱ is on the macro model of government procurement right relief system. This thesis adopts the method of combining theory with practice and comparative analysis. Firstly, to realize that the government procurement contract is administrative as well as civil is very important for us to understand that the government procurement can be divided into two stages. Secondly, This thesis illuminates the theoretical foundation of government procurement right relief system, including the French separable behavior theory and Germany two-stage theory. Then this thesis introduces the American government procurement two-stage right relief system and Taiwan’s government procurement two-stage right relief system, summarizing their respective advantages and disadvantages. In the end, design scientific government procurement two-stage right relief system which is suitable for our national conditions: from the aspect of right relief stage, divide the government procurement contract into the conclusion stage and performance stage; from the aspect of right relief party, point out that there are such parties as the third party、successful supplier and purchaser in the government procurement.Chapter III illustrates the third party right relief system in the government procurement contract conclusion stage,based on the theory of modern competition legislation. The third party mainly includes potential supplier and bidding supplier. The third party fails to conclude the government procurement contract and fails to arrive the contract performance stage, so we should pay our attention to the third party’s rights in the government procurement contract conclusion stage. The reason why the third party has the necessity of right relief is that his right to fair competition has been infringed, including the right to be informed and the right to fair participation. There are several defects on the third party right relief procedures in Chinese government procurement law:narrow scope of the third party、the query procedure’s preceding the compliant procedure、the lack of independent complaint-reception department、narrow scope of jurisdiction. In light of these four defects, this thesis puts forward respective improvement suggestion. By the means of comparative analysis, according to the logic of our application failures、international successful experience and our improvement suggestion, illustrate three concrete right relief methods:a temporary quitting of government procurement、canceling the illegal decisions and behaviors and a certain amount of remedy.ChapterⅣ is on the successful supplier right relief in the government procurement contract performance stage. There are two conditions in which the successful supplier’s rights will be infringed:purchaser conducts flawed or illegal behavior; the objective conditions change, if the contract is continued,it will have unfavorable impact on the successful supplier. The international successful experience of successful supplier right relief procedure are as follows:mediation and arbitration. Combined with our national conditions, there are four suitable right relief procedures for the successful supplier:consultation、mediation arbitration、civil litigation. In order to ensure that these procedures can perform well, it is imperative to establish the proof maintenance before litigatio、purchase’s guarantee and insurance and system on objective conditions’ change.Chapter Vis on the purchaser right relief system. Although purchaser is in the predominant status, he is also likely to be infringed by the third party and successful supplier. Since purchaser takes part in the overall course of government procurement contract, including conclusion stage and performance stage, the right relief system for purchaser should also involve two stages. In light of purchaser’s characteristics, the bidding guaranty money in the conclusion stage and performing guaranty money in the performance stage can provide efficient right relief for purchaser.