The Ways To Enforce The Administrative Contract And Its Transformation

Compared with the specific administrative act,the administrative contract is more easily accepted by the administrative counterpart because of the consultation,and it is paid more and more attention by the government.However,the non-mandatory of the administrative contract makes the government in trouble:when the counterpart does not fulfill the obligation,how to implement the administrative contract forcibly?According to the new administrative procedural law,when the government does not fulfill the obligation,the counterpart can bring an administrative suit,but the new administrative procedural law did not notice the bidirectional of the contract,making this situation worse.Based on 38 judicial review cases involving administrative contract in Pkulaw,we can find that there are four different ways taken in practice,and before and after the implementation of the new administrative procedural law,the enforcement of administrative contract in judicial practice is not unified.The nature of the administrative contract and the relationship between the administrative contract and the administrative act is the key to choose the way to enforce the administrative contract.The administrative contract is both administrative and contractual,and through normative analysis and theoretical analysis,we can find that "administrative contract" in the new administrative litigation law is regarded as aggregation of administrative behavior and private behavior,and "administrative act" is still in the narrow sense of administrative act.Therefore,on this basis,the four ways in practice are flawed.Compared with these four ways,introducing voluntary acceptance of enforcement as a standard term in the administrative contract can provide the right basis for government.And improving the mechanism of non-litigation enforcement can strike a balance between public interest and the interest of the counterpart and ensure the achievement of execution.This way can adapt to the diversification of administrative contract types and the trend that agreement between both parties will be increasingly respected.