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The Validity And Legal Liability Of Illegal Administrative Contract

Posted on:2017-01-31Degree:MasterType:Thesis
Country:ChinaCandidate:J X HuangFull Text:PDF
GTID:2346330488472706Subject:Constitution and Administrative Law
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The amended “administrative procedure law of the People's Republic of China”(hereinafter refer to as “administrative procedure law”) in 2015 will explicitly included the administrative contract in the scope of accepting cases of administrative proceedings”, “the Supreme People's Court is applicable for the interpretation of several problems <administrative procedure law of the People's Republic of China> ”(hereinafter refer to as “judicial interpretation”), which has made the relevant provisions towards the review of administrative contract and the investigation is mainly carried out from two aspects of contract performance and administrative prior rights. Unfortunately, there is no provision for the illegal administrative contract. The illegal administrative contract is a subject that must be faced in the judicial practice. Administrative contract has the executive power and consensus. The judicial review of the illegal administrative contract is not only different from the traditional unilateral administrative act, but also different from the rules of the private law contract. In the theory of juristic act, there are three kinds of evaluation on the illegal juristic act: one is illegal evaluation, namely the judgment made on behavior that breaks the law to determine whether the behavior is illegal; the second is the evaluation of the effectiveness, including effective and ineffective assessment, and it mainly makes the inefficient evaluation towards the illegal act; the third is the evaluation of responsibility, that is, to determine the legal responsibility of the illegal behavior. The author refers to this system and makes the analysis on the illegal administrative contract by viewing the current administrative litigation system, hoping to provide suggestions for the judicial practice of the administrative contract.This thesis is divided into three parts:The first part has amended the legality of administrative contract conditions combining the particularity of the administrative contract. It is concluded that the legitimacy of private contracts and the legality of administrative action has no inherent repulsion and explicated that the research approach for administrative contract legal requirements is unfold with the related traditional administrative act theories by surrounding with the characteristics of administrative contract through analysis and comparison of juristic behavior within the public and private law theory. The important documents of administrative contract legality include: administrative contract has formal admissibility; the legitimacy of contracting parties for administrative contract(equivalent to the ability of subject behavior); the legitimacy of content for the legal administrative contract; administrative contract comply with statutory procedures and other special legal conditions.The second part mainly discusses the validity of the illegal administrative contract. First of all, it clears the research path of the validity of illegal administrative contract: the analysis starts from the provisions of civil acts effectiveness and administrative acts effectiveness. Theoretically speaking, the effectiveness of public and private sector has different values and connotations. The conflict between the administrative act and civil behavior effectiveness will be occurred in the carrier of administrative contract; one of its expressions lies in the civil act effectiveness provision is not fit for administrative contract. Administrative act theory can be divided into invalid administrative act and revocable administrative act by the seriousness of the illegal administrative act. Under special conditions, the illegal administrative acts are effective. Combined with the cases, the effectiveness of administrative contract can be analyzed, it can be found that the unfit situation for the provision of civil act in administrative contract mainly lies in the 52 article of invalid provision and 54 article in revocation provision; The division of ineffectiveness and revocation is not clear, many of which can not meet the administrative contract of invalid criterion is defined as invalid. Secondly, the France, Germany and Taiwan related practices are introduced aiming the problems occurred in illegal administrative contract in the theory and practice. Finally, the solutions are put forward aiming the existing problems. The judge should pay attention to the balance of administration law-based administration and principle abidance and the benefit between the public interest and private interest when executing the discretionary power by referring to the France practice of handling the discretion to the judge and judging the effectiveness of administrative negotiation. It provides the detailed advice for judicial review by the further analysis of the invalid contract and voidable contract situations caused by law breaking. It's not advisable to use the fifth paragraph in 52 article in "contract law" to judge the invalid administrative contract.The third part analyzes the legal liability of the illegal administrative contract. First, it puts forward some opinions on whether the responsibility of contractual negligence can be applied to the administrative contract system. Based on current administrative proceeding system, it is not allowed to trace responsibility of contractual negligence of private party in the administrative or administrative proceeding, and the realization for the introduction of administrative contract to the responsibility of contractual negligence has a certain obstruction. However, there is no obstruction to the responsibility of contractual negligence of administrative subject and there is a room to apply it. Secondly, the administrative contract violation will produce illegal responsibility on administrative law. The administrative subject can undertake responsibility by the administrative proceeding put forward by counterpart and administrative compensation, etc. but the responsibility can generate the competition and cooperation with the previous stated responsibility of contractual negligence. The authors thinks that it should start from protecting the benefit of private party and take the responsibility of contractual negligence as the priority; private party can realize the illegal responsibility by administrative activities of administrative subject, such as, administrative punishment, administrative coercion.
Keywords/Search Tags:administrative contract, legality, effectiveness, responsibility of contractual negligence
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