Legal Regulation Of Administrative Superiority Rights In Administrative Contracts

Under the background of service-oriented administration and participatory administration,the realization of administrative objectives by administrative parties in the form of administrative contracts has become an important means and method for the Chinese government to administrate according to law.At present,China's administrative contracts mainly play an important role in providing public services to the society.In practice,it also covers many different areas,mainly including infrastructure construction,house expropriation compensation,and government procurement.As a new type of administrative management,the administrative contract has the dual attributes of “administrative” and “contractual” and is a product of public-private fusion.The main difference between the contract and the ordinary contract is that the administrative subject enjoys superiority over the superiority of the administrative contract relative to the administrative subject in order to better protect the public interest and realize the administrative objectives.This is called "the administrative superiority of the administrative subject in the administrative contract".That is,the administrative body can break through the equal status of both parties in the administrative contract.The unilateral compulsory measures impose certain mandatory measures on the administrative counterpart.This article begins with the concept of administrative contracts and administrative superiority rights.It is argued that although scholars hold different views on this topic,judicial interpretation,as the right to explain,is obviously more authoritative when defining the concept of administrative contracts.The author also believes that although there is no explicit wording of administrative superiority in the normative documents,the nature of the public law of administrative contracts and the need to safeguard public interests determine the necessity of existence in administrative contracts.And as a privilege of the administrative subject,the administrative superiority benefits also have unilateral,statutory,public welfare and mandatory characteristics.Finally,the author puts forward his own perfect suggestions by referring to the legislative experiences of foreign countries and combining with the actual problems in our country.The research on the administrative superiority and benefit system in administrative contracts in our country started late,but other countries have more mature provisions on administrative superiority and right in administrative contracts.At present,there are two major theories in the mainstream countries.One is the theory of absolute administrative superiority and power represented by France,and the other is the theory of strictly limiting administrative superiority and power represented by Germany,the United Kingdom,and the United States.The author believes that China cannot completely copy the theory of other countries.Instead,it should propose improvements based on absorbing the excellent experience of other countries and combining its own national conditions.It mainly includes clarifying the specific content of administrative superiority and benefits,clarifying the conditions for the exercise of executive benefits,and strengthening the procedural control of administrative superiority rights and the improvement of post-relief approaches.The administrative superiority right is the core content of the administrative contract.Perfecting the administrative superiority and right in the administrative contract will protect the public interests represented by the administrative subject,and it will also prevent the abuse and expansion of power.At the same time,it can also balance the public interests and private interests involved in administrative contracts,making administrative contracts behave in practice.