A Study On Pre-contract Obligations Of Administrative Contract

The concept of pre-contract obligations of administrative contract is based on itsadministrative nature and contractual nature. The logical starting points are the dueprocess principle of contract’s administrative nature and the good faith principle ofcontract’s contractual nature. The principle of due process is for the vacancy of"invisible" subject in an administrative contract and the lack of protection for thepersonal rights. And its purpose is to overcome the problems that the principle of goodfaith in civil contract can not afford when facing the theory of the conclusion of theadministrative contract and the practical problems of the conclusion of theadministrative contract.Specifically, there are two aspects about the pre-contract obligations ofadministrative contract. One is the pre-contract obligations based on the principle ofdue process; the other is the pre-contract obligations based on the principle of goodfaith. And it’s known by the preliminary form through some theory of administrativelaw and individual cases that the former includes proposed public obligationsincluding “reasons of the conclusion of an administrative contract open”,“theconditions of the choice of the contact party open”,“issues about public interestsopen”,organization obligations of public participation, open obligations of agreementdraft, explanation obligations of explain the reasons, etc; And the latter includes strictcensorship obligation, full consultation obligation, inform obligation, legitimatecompetition and loyalty to the confidentiality obligations, etc.And through the observation of some relative administrative norms and cases about administrative contract, it’s easy to see that the pre-contract obligations ofadministrative contract is lack of procedural and substantive protection. In theobligations of procedural protection on the main problems are:(1) the contractobligation receptor is unclear;(2) obligations of competition and consultation areignored. Main shows on obligations of substantive protection:(1) the lack ofadministrative norms on the real protection;(2) the administrative organ to protect thecontract entity nascent but remains low;(3) the court plays little on the developmentof contract entity protection.For the current situation, we can evolve the protection of pre-contract obligationsof administrative contract and the development of the system of the pre-contractobligations of the administrative contract could go on by the court,the rule maker andthe administrative contract subject itself. In terms of the court, firstly, it can makerational position about the conclusion of the administrative contract as for thedevelopment of the pre-contract obligations. It needs to grasp the macro on theconclusion of the administrative contract by the rational positioning based on thebasic guiding ideology of people-oriented. On this basis, system of the public welfarelawsuit, and the system of dispute illegal or invalid can be derived. Secondly, thecourt can use judgment to show the contractual obligations through writing relevantcontents. And it is also important to improve the administrative main bodyconsciousness in dealing with contractual obligations. On the aspect of legislation, itshould show the democracy on the procedure of concluding administrative contractsby “administrative procedural law” and actively doings in the contract specificationby local legislative.And the contract subject itself mainly includes three aspects:administrative body shall perform their duties according to law, the integrity of thecontracting parties and the "invisible" subject to take an active part. Certainly, thethree kinds of evolution model must be linked up and timely reflect the concludingadministrative contracts in practice, thus first contractual obligation in administrativecontract domain development to provide more nourishing soil.