Research On The Protection Of The Rights And Interests Of The Third Party In Administrative Contract

For a long time,the administrative organs of the principal means of administration are one-way,mandatory administrative behavior,non-mandatory administrative behavior is minimal.However,with the rise of modern administrative concepts such as welfare state and service government,the citizen's participation in public management consciousness is rising constantly,the traditional administrative means and administrative target began to change significantly,a series of new administrative methods began to appear.Administrative contract is one of them.According to the provisions of Article 11 of the Supreme People's Court on the Application of the Interpretation of the Administrative Litigation Law of the People's Republic of China,2015,administrative contract is a agreement signed by the administrative organ and the citizens,legal persons or other organizations in consultation with the administrative rights and obligations,so as to achieve public interests or administrative objectives,within the scope of statutory duties.The purpose of the public welfare of the administrative contract determines that the signing of the administrative contract will not only affect the rights and obligations of the direct contract counterpart,but also affect the rights and obligations of the other third party,including the administrative subject,the administrative contract counterpart,the third party and other multi-party subjective multilateral administrative legal relationship.The pluralism of the stakeholders involved in the administrative contract and the conflict between the interests of the various stakeholders determine the origin and existence of the third party of the administrative contract.But since the emergence of administrative contracts so far,scholars focus on studying the protection of the legitimate rights and interests of the direct contract counterpart,although the protection of the relative rights and interests of the administrative contract is not perfect in practice,the neglect of the protection of the legitimate rights and interests of the third party in the administrative contract is even more serious.In view of the administrative contract will gradually become the main mode of the administrative organ to perform his duties,the administrative contract will emergence of more and more.Based on the purpose of supervising the administrative organs according to law,safeguarding the public interest and realizing the equal protection of the rights,it is necessary to explore and explore the remedies of the protection of the legitimate rights and interests of the third party of the administrative contract.The third type of administrative contract is the prerequisite for the protection of the third party,so this article draws on the relevant theory of the third party of the civil contract,classifies the third party of the administrative contract,and concludes with the third party of the administrative contract Of the three types of typical forms: the fair competition right of the administrative contract,third party consumers in public service administrative contracts,housing levy compensation contractor.Through the analysis of the three typical forms,it is considered that the current situation of the protection of the rights and interests of the third party's administrative contract has some problems,such as less legislation,lack of administrative practice experience and judicial relief and so on.In view of these problems,the article try to from the legislative,administrative,judicial recommendations in three aspects: Firstly,improve the legislation,give the third party the right to know,to listen,to consent,to participate and other procedural rights,Through the pre-legislation from the procedural guarantee of the third party's rights and interests of the administrative contract;Secondly,standardize the enforcement of the executive authorities and the concept of law enforcement.The administrative organ shall not only consider the relationship between the public interest and the private interest in the conclusion and implementation of the administrative contract,but also consider the relationship between the private interests and the private interests,the public interest and the public interest,pay attention to the conclusion of the administrative contract;Thirdly,to confirm the plaintiff qualification of the third party of the administrative contract.If the scope of the plaintiff to extend the scope of the third party to all administrative contracts,it is bound to reduce administrative efficiency,waste of judicial resources,so that the third party in the administrative contract qualification not only adhere to the "legitimate rights and interests of the standard" and "interest standards",but also to establish the relevant standards,the causal relationship between the standard and the need for specific criteria such as specific standards.