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Remedies For The Breach Of Contract By Administrative Counterpart In Administrative Contract

Posted on:2018-02-19Degree:MasterType:Thesis
Country:ChinaCandidate:F HeFull Text:PDF
GTID:2336330515982692Subject:Law
Abstract/Summary:PDF Full Text Request
Administrative contract is in line with modern administrative democratization,flexible trend produced an innovative means of administrative governance.The occurrence of administrative contract disputes is an unacceptable problem that administrative contract is widely used in administrative practice.Balance public welfare and private interests,smooth settlement of administrative contract disputes become a top priority.In 2014,the newly revised Administrative Litigation Law incorporated the administrative contract disputes that the administrative subjects defaulted into the scope of the administrative litigation,but did not solve the problem of how the disputes arising from the default were related,and the other relevant legal norms did not Clear rules.Therefore,this paper tries to find out the best way to resolve the administrative contract disputes of the relative breach of contract in the existing legal framework with the core of the remedies of the administrative contract disputes.This paper is divided into four parts.The first part is the analysis of the current situation of the administrative contract dispute settlement in China.First of all,it is necessary to clarify the concept and characteristics of the administrative contract to find the way to resolve the administrative contract dispute of the relative person.This is the basis of this research.Through the limitation of the concept of administrative agreement in the interpretation of the Supreme Administrative Law of the People's Republic of China in 2015,this paper defines the concept of administrative contract.The administrative contract is the administrative subject to achieve the administrative objectives,within the scope of statutory duties and administrative To establish,alter or eliminate a contract of rights and obligations in administrative law in a consensual manner.The administrative contract as a special contract,which is characterized by both administrative and consensual.Secondly,according to the concept and characteristics of the administrative contract,the administrative contract scattered in our legislation is identified,and then the relevant legal norms on the relative breach of the provisions of the provisions of the law,found that China's current law does not provide a clear and feasible relief The Finally,through the analysis of relevant cases,we recognize the chaos of relief in judicial practice.Through the analysis of the status quo in the first part,the necessity and urgency of discussing the solution to the administrative contract dispute of the relative person is obtained.The second part is for our three kinds of remedies refuted.Respectively,on the civil litigation relief approach,said the administrative litigation relief approach and the application of enforcement said that the interpretation and assessment,to recognize the three solutions to the wrong place.The third part is the administrative treatment of the first way to solve the proof,this is the focus of this article.First of all,the author introduces the ways to resolve the administrative contract disputes of the relative people in the field,and analyzes the relevant provisions of Britain,France and Germany respectively.Then,the focus is on the feasibility of the administrative solution.At present,some judges and a small number of scholars support this view,the biggest advantage is that fit the existing legal framework,both to ensure that the relative violation of the provisions of the administrative legal norms to be resolved,but also from the "Administrative Procedure Law" "The modification.Can protect the public interest from damage,butalso to fully protect the legitimate rights and interests of the relative.The fourth part is the administrative development of the existing system of specific development,is the core of this article.Secondly,it discusses the applicability of due process principle in the administrative solution of the first solution.This paper argues that although there is particularity,the administrative contract is,after all,it is a kind of administrative basis.contract.The principle of due process should be applied in the process of settlement of the administrative contract dispute,which will increase the burden of the administrative party.Finally,it discusses the applicability of the principle of proportionality in the administrative solution of the administrative treatment.This paper argues that the principle of proportion should be applied to prevent the administrative body from abusing his power and damage the legitimate rights and interests of the relative person.In general,this paper argues that the best way to deal with the administrative contract disputes of the relative existence of the relative existence in the practice is the first way to solve the administrative treatment.Administrative contract is not only a new administrative means,but also a special contract,in the process of resolving the relative contract of administrative contract disputes,it is necessary to grasp the administrative contract of the administrative and to grasp its desirable,only So as to balance the relationship between public welfare and private interests within the existing legal framework and play the greatest value of the administrative contract system.
Keywords/Search Tags:Administrative contract, Administrative counterparts default, Relief pathways
PDF Full Text Request
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