Discussion On The Execution Path Of Administrative Contract

With the changes of unilateral administrative contract to the administration’s unilateral,traditional administrative behavior has been unable to meet the requirements of administration according to law and democratic administration. The administrative contract as a new administrative mode has been widely used in practice because of the double attribute of the administrative contract. In the "administrative procedure law" amended in 2014,the administrative litigation object is "administrative act", at the same time,in twelfth of the provisions of the scope of the agreement of the government has increased the franchise agreement, the land expropriation of houses agreement. The relative people of the administration can be based on the two kinds of administrative contract sue to the administrative litigation. Administrative contract has realized the transformation from academic terms to the legal concept, but the law hasn’t defines the concept of administrative contract. The problem is the new "administrative procedure law" including only the two types of administrative contract or covering all the administrative contract? How to deal with the judicial interpretation on administrative contract and other special provisions? The relative party fails to perform its obligations, the administrative subject should do what to remedy? The author believes that, in view of the current administrative contract in the identification standard, classification, review the degree of ambiguous, should not to make "administrative procedure law" included all of the administrative contract enlargement explain. This paper based on analysis of three typical cases, found in the implementation process to achieve administrative contract is faced with destruction of the contract agreement, the relative people choose to combat enthusiasm the predicament of administrative contract mode. Based on region advanced practice learning from Germany, China’s Taiwan, restrain and regulate the implementation of the administrative contract execution of administrative subject. It is necessary for ensure the full play of the function of administrative contract to safeguard public interests while not violating the legitimate rights and interests of the administrative relative person.This paper is divided into three parts.The first part, the basic situation of three typical cases were described, first briefly introduced the case, then the objective description of differences of opinion, finally extract the focus of controversy. This paper selects three cases respectively represent the three kinds of administrative contract execution path of the current legal framework, namely according to the administrative contract to make administrative punishment or administrative compulsory behavior. On the basis of the administrative contract special legislation execution and through the civil execution. By comparing the differences of opinion, summed up the focus of controversy of the case, leads to the topic.The second part is a thorough analysis on the theoretical problems of the focus of controversy involved in the study, is the next part of expansion theory premise analysis on the case. First of all, the comparison of administrative contract and other administrative acts, although there is no legal regulations on administrative contract clearly defined, but the nature of administrative act is beyond doubt; then analyze the special performance of the double attribute of administrative contract, right, administrative priority of the administrative contract, responsibility of the existence of different ways and common contract decision its particularity in the implementation; finally both inside and outside the domain of the administrative contract execution path to inspect, exposed to make administrative punishment behavior easy threat acceptability, according to administrative contract special legislation stipulation vague and contradictory, civil litigation cannot review of administrative behavior and can not meet the economic and efficiency etc. according to the administrative difficulties the contract. On the basis of combining the actual situation, on foreign advanced system reasonable, effective reference.The third part is the "empirical" part, the use of the above theory to analyze the three cases and concluded; summarize some perfect administrative contract enforcement system suggestion. Germany, China’s Taiwan region to obtain performance as the principle, voluntarily agreed to enforce as exceptional practice through litigation, worthy of our reference. However, there is coordination with our current litigation system part, obtain the execution of short-term difficult to achieve through administrative litigation, agreed to voluntary implementation of provisions of compulsory can be implemented in the short term, and define the scope of public interests, exhaustion of administrative remedies means, administrative and contract can maintain administrative contract, effectively play the function of guarantee contract.