On Judicial Reviewing Of Administrative Contract In China

Reviewing the history of management of public affairs,the application of administrative contract plays a very important role in the respective of management modes.It breaks through technical barriers to the participation of citizens in political orderly,and broadens governmental roads,which in order to make good-governance come true.Through administrative contract which is used by the subject of administrative to achieve administrative purposes practically has becoming a popular phenomenon.It improves the public welfare,adjusts the role of government,and promotes the reformation of the way of governance.Although administrative contract has a long history and positive,far-reaching impacts on social progress,the related legislation is not clear,theorists also have different opinions.Therefore,what is the meaning of administrative contract,where is its intention and extention,what is its legal characteristics and some other basic issues have not been studied deeply and have no uniform conclusion.It is difficult to regulate administrative contract legally and effectively.This widespread phenomenon violates the principle of legal administration,also to a certain extent,becomes a impediment to its development.The new administrative procedure law comes into operation from May1,2015.The administrative contract had been clearly included in the scope of administrative litigation,from now on,we may see lots of administrative contract disputes,such as Housing Expropriation Compensation and Resettlement Contract,Government Licensed Management Contract,invade into law court.But it is the non-clear legal provisions and non-clear judicial interpretation requirements that make the judge's trial and judgment in dilemmas.Now we should perfect administrative contract judicial reviewing system on the basis of our judicial practice and foreign advanced experiences from these following aspects specifically.First,in the aspect of judicial censorship,define the principle of judicial examination,including legality reviewing,rationality reviewing,contractuality reviewing.The behavior of the administrative subject is whether or not in accordance with the provisions of laws and regulations,compliance with administrative purposes,in line with the contract.Second,in the aspect of responsibility principle,the imputation principle of the administrative agreement is determined according to the nature of the sued administrative behavior,because the administrative benefit right which is exercised by the administrative subject is equal to an administrative behavior,so involving exercising administrative benefit in administrative contract cases are applied to illegal responsibility based and equitable liability as the supplement;when it comes between equal subjects to perform the obligations of administrative contract cases are as same as civil contract,which is applied to fault responsibility based and equitable liability as the supplement.Third,in the aspect of burden of proof,the burden of proof is determined by different facts to be proved.The facts involving the legitimacy of the administrative contract are proved by administrative body in principle according to the requirement of administrative law;the facts involving the rationality of the administrative contract are proved by administrative body and administrative relative person according to their own behavior;the facts involving the effectiveness of the administrative agreement are still proved by any party who advocates the contract is valid or invalid.Although the court can judge the effectiveness of administrative contract sued,it does not mean that liabilities which should be assumed by parties are exempted.The facts involving the contractuality of the administrative contract are proved by two parties,if one party does not perform in accordance with the contract,the other party can claim and provide evidence,the claim of the defaulted party may provide evidence to refute,the burden of proof is switched between two sides with different claims;the facts involving compensation are proved by administrative relative person who provide evidence to prove his loss.Fourth,in the aspect of application of law,to choice the right law accurately.Administrative substantive law,administrative procedure law and administrative principle are applied preferentially,civil substantive law and civil procedure rules are quasi-used,and the factor of administrative benefit right should also be considered.Fifth,the aspect of referee method,confirm agreement effective judgment,continue to perform contract judgment,compensation judgment,relieve contract judgment,and confirm contract void judgment should be further explicit in premise,condition and decision effect.At the same time,to add changing administrative contract judgment,cancellation contract judgment,and mediation judgment according to specific circumstance and plaintiff‘s demands.Through the above-mentioned paths,we can improve our system of judicial review of administrative contract in our country,unify court discretion standard,supervise legal administration,boost administrative agreement normatively,and ultimately mordernize our governance system and governance capabilities.