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The Application And Rules Of "Circumstances Change" In The Performance Of Administrative Contracts

Posted on:2018-07-30Degree:MasterType:Thesis
Country:ChinaCandidate:W YangFull Text:PDF
GTID:2346330515992559Subject:Constitution and Administrative Law
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The people’s court may apply civil legislation provided that the compulsory provisions of the administrative law and the Administrative Litigation Law do not violate in examining the administrative contract cases."Circumstances Change" in civil law can be applied to administrative contract trial.The administrative contract belongs to bilateral contract,which is contracted by the intention of the parties unanimously and will be affected by the change of circumstance entirely in theory.At present,when dealing with circumstances change in the fulfillment of administrative contracts,our country attach too much importance to the prerogatives of government and the protection of public interests,but ignore the guarantee of the private legitimate rights and interests,which will not only reduce the administrative relative person’ s enthusiasm to enter into a contract,but also affect the fulfillment of contract purpose.The article is based on the legislation status and judicial practice,analyzing overseas laws by comparison,such as France,Germany and Taiwan,discussing the application and rule of the change of circumstances in the fulfillment of administrative contracts,and trying to construct the processing pattern of circumstances change in Chinese administrative contracts performance.To be concrete,the outline of this dissertation is arranged as follows:The first chapter put forward the topic.There are two cases,including the case of"newly add planning permission" and "newly find cultural relics",which used to address specific inquires of this thesis will solve.The second chapter is the discussion of "circumstances change" in administrative contract performance has rationality and necessity,from "circumstances change can be applied to all kinds of contracts" and "circumstances change in administrative contract performance has its specificity".The third chapter is the constructive conditions of "circumstances change" in administrative contracts fulfillment,this is the precondition to talk about the processing pattern of the change of circumstances’ application.Because the change of circumstances in civil law doesn’t contravene the compulsory provisions of the administrative law,so the identification criterion of Article 26 of the Interpretation II of the Supreme People’s Court of Several Issues concerning the Application of the Contract Law of the People’s Republic of China about "the change of circumstances"can be applied to administrative contracts.The article also combines with overseas experience to generalize the constructive conditions of circumstances change,including a major circumstance change,changes occur in the process of contract,unforeseeable,un-attributable,and on the condition that the continuous performance of the contract is obviously unfair to the other party or cannot realize the purposes of the contract.These constructive conditions distinguish "circumstances change" fromother legal concepts,such as "force majeure","business risk" and "obviously unfair".The fourth chapter introduces the subjects of applying the change of circumstances,and the main rules of dealing with the problem of circumstances change.Firstly,this article analyzes the two parties of administrative contracts have rights to claim the application of the Doctrine of Circumstances Change.Secondly,talks about the two main methods to settle the matter of the fulfillment of administrative contracts:negotiated modification and unilateral modification,including the relationship between each other and the applicable conditions respectively.Thirdly,discusses French,Taiwan and German legislative model.Then according to the status quo of China’s legislation and judicial system,I try to design the system of circumstances change from the standpoint of comparative law.The fifth chapter is the conclusion,reviewing the cases mentioned in chapter one to test the rationality of the system,and concerning the core contents and viewpoints of this article.
Keywords/Search Tags:administrative contract, the change of circumstance, rules of application, comparison, negotiated modification, unilateral modification
PDF Full Text Request
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