The Discussion On The Legal Application Of The Judicial Review Of Administrative Contract

With the widely spreading use of administrative contracts in sphere of administrative law,administrative contract has become a common means of the authorities to executeadministration and relative activities. In China, administrative contracts was born in the late20thcentury during transformation from planned economy system to market system anddeveloped in that transformation. Besides, China’s national circumstances and socialbackground make it difficult to align Chinese administrative contracts system to foreignadministrative contract theories. Therefore, it’s far from mature. On one hand, administrativecontract acts as a “common means”, on the other hand, it’s “far from mature”, which brings aseries of problems.Started late though, administrative contracts, as new things has won highly attention inboth administrative law field and civil law field and made a wave of researching inadministrative contract theories. However, there hasn’t been a unified understanding ofadministrative contracts in academe, which results lots of confuses in the judicial review ofadministrative contracts. A statue of administrative contracts in the central level is in vacant,that is to say, how to specify the administrative contracts is not clear up to date and how tohear a case is obscure for the court. Most of the time, the court hears a case in accordancewith judicial interpretation of the supreme court and sometimes the judicial spirit, whichdeviates far from the socialist country under the rule of law China has been advocating inrecent years.Under the above circumstances, the author researches into relative monograph treatises,papers and cases, cards the current situation of the administrative contracts judicial reviewand sums up the confusion in application of law during administrative contracts judicialreview. To identify roots of the confusion, the author deeps into the confusion and reveals theparadox between rights and contract spirit in traditional administrative law theory. At thesame time, the author interprets the paradox in a new perspective and conceives a preliminaryproposal.The thesis comprises of four sections:The first section describes the current situation of the application of law in administrative contract judicial review. It will cover the current situation of administrative contracts inlegislation, judicial changes and theories research.The second section puts forwards the confusion in the application of law duringadministrative contracts judicial review, which includes obscure criteria in administrativecontracts identification, unitary principle of judicial review and the fuzziness in theapplication of law.The third section analyses the confusion in the application of law during administrativecontracts judicial review, which is the key part of the thesis. In this section, the authorsearches into the root cause of confusion in application of law during administrative contractsjudicial review, that’s the paradox between power factors and contract spirit, from aperspective of administrative law theory. Then, the author demonstrates the symbiosis of theparadox with developing theory of administrative law and affirms the paradox. It seems thetraditional science of law is overturned; however, it criticizes the traditional science of lawand pushes forward the development of the traditional science of law.The fourth section discusses a new thought of application of law during judicial reviewof administrative contracts, which highlights the thesis. In this part, the author relates andanalyses respectively in aspect of the identification criteria of administrative contracts, theprinciple of administrative contracts judicial review and application of law and proposes thatthe judicial review of administrative contracts should fall within the principle of legalityreview, reasonability review and contractuality review, that the identification criteria ofadministrative contracts should base on both rights and public welfare and be entered into astatue, that the administrative contracts should be reviewed by administrative law and civillaw respectively according to the content of the contract. In the end, the author enumerates thepossible misunderstanding of law application during administrative contracts review tofacilitate the practice of administrative contracts review.