Research On The Legal Relief Mechanism Of Administrative Contract Relative To The Breach Of Contract

Administrative contract as an effective means to carry out the public management function in the administrative department,with the innovative idea of "flexible law enforcement" of the administrative organ,has been widely used in the field of administrative management,the controversy that accompanies it also continues to emerge.The administrative procedure law,revised in 2014,brings the " administrative agreement" into the scope of the administrative litigation,and specifies that the relative person of a specific administrative contract may have the right to file an administrative action in cases where the administrative subject does not perform the contract according to the law,fails to perform or illegally changes,and terminates the administrative contract.But the new question is immediately raised,that is,if the relative person violates the administrative contract,whether the administrative subject should also be relief through administrative litigation? This article takes such a doubt to explore and discuss the relief mechanism of the relative breach of contract,and try to propose a reasonable,feasible and effective legal relief mechanism for the relative breach of contract.This paper is divided into four parts.The first part is the summary of the relative default of the administrative contract.This paper mainly interprets the concept and characteristics of administrative contract,the definition of the concept of relative human default,the form of relative human default,and the liability and form of breach of contract.through research,it finds that administrative contract has the characteristics of administrative and contractual characteristics,so the relative human default is similar in appearance to civil contract breach,but it has the distinct characteristics of administrative responsibility in the nature of liability.This provides a theoretical basis for in-depth analysis and discussion of the relief mechanism of relative breach of contract.The second part is the reflection of the theory and practice of the relief mechanism of the relative person in our country,mainly for the analysis of the four-bell relief mechanism of administrative processing,non-litigation execution,civil litigation and administrative litigation.Through the analysis found,whether in theory or in practice,the relative human default mechanism,or the existence of theoretical defects,or the existence of a system of deficiencies,or existing practice test,both feasible and inadequate,has not yet established its consistent theory and system.This paper argues that this situation,although it brings practical difficulties to the remedy of the relative breach of contract,but also provides a broad theoretical discussion space for the construction of reasonable and feasible remedy mechanism of the relative breach of contract.The third part is the testimony of the relief mechanism of the relative human default administrative litigation in our country.This paper mainly from the relative human default administrative dispute attribute,the administrative main body of the obstacles to the status of the obstacles to the plaintiff,the advantages of administrative litigation relief mechanism and the foreign countries against default relief mechanism reference four aspects,demonstrates the relative human default applicable administrative litigation relief mechanism feasibility.This paper argues that in our country,the relative human default should apply administrative litigation relief mechanism.The fourth part is the perfection of the relief mechanism of the relative party's breach of administrative litigation.This paper argues that the administrative contract dispute should be integrated into the scope of administrative litigation,two-way structure clear judicial review of the administrative contract,determine the principle of judicial review,legal and reasonable contract system,the establishment of administrative contract under the jurisdiction of the court of jurisdiction,the reasonable allocation of the burden of proof,the establishment of mediation system of administrative contract dispute case,perfect administrative litigation judgment of administrative contract form,in order to complete the construction of the administrative contract dispute relief mechanism of administrative litigation.In general,this paper argues that,although in the administrative subject of default to be included in the scope of administrative litigation case,the idea of the relative human default administrative litigation relief is too bold and abrupt.However,in order to achieve the balance of public welfare and private interests,to give full play to the value of the administrative contract system,it is necessary to provide legal relief for both parties under the unified legal system framework,and is the trend of the times.