On The Problems Existing In The Practice And The Countermeasures Of The Superior Right Of Administrative Contract In China

For the past few years,administrative contracts have been widely used in China.However,there are many problems in the practice of the superior right of interest in administrative contracts,and there is no uniform standard for the judicial review.In theory,our country overemphasizes the "protection" but neglects the "control";in terms of legislation,there are no systematic and complete provisions on the superior right of interest in administrative contracts in China.Balancing the thoughts of "protection" and"control" and making clear regulations on the establishment,exercise and relief of the superior right of interest in administrative contracts are conducive to the better realization of the purpose of administrative contracts.This paper mainly discusses questions from the following aspects:First of all,the introduction introduces the research background and current situation of the superior right of interest of administrative contract in China,as well as the research significance and research methods of this paper.Administrative contract has already existed in practice.In order to protect the public interest,administrative subject is endowed with the superior right of interest.Although the relevant research is worthy of affirmation,the research on the superior right of interest is not in-depth.Therefore,this paper uses case analysis,comparative analysis and other methods to analyze the existing problems of the superior right of interest in administrative contracts,and to find solutions to the problems.The first part discusses the problems existed in the practice of the super:ior right of interest in administrative contract in China,mainly include the problems in the exercise of administrative subject and judicial confirmation.First of all,it is not standard for the administrative subject to exercise the superior right of interest.In practice,there is phenomena of abusing and passively exercising,and the compensation for the counterpart is formalized.Secondly,the court has different attitudes to the determination of the superior right of interest,and there is no unified and clear standard in the review.The second part,based on the first part,analyzes the reasons for the problems of the the superior right of interest in administrative contracts in China,including the theoretical and legislative reasons.In theory,there is no unified view on the connotation of the superior right of interest,and too much attention has been paid to the "protection" of the superior right of interest while ignoring the "contror".In legislation,there is no complete system of provisions,lacking the relevant regulations in the entity,procedure,relief and other aspects.The third part and the fourth part are the concrete countermeasures to the problem of the superior right of interest.The third part discusses the general idea of improving the relevant theories of the superior right of interest in administrative contracts in China.On the premise of clarifying the nature of superior right of interest,the author attaches importance to the thought of "control",but the thought of "control" cannot be over corrected.At the same time,the related theories of contract law and civil procedure law can be used for reference.The fourth part discusses the specific ways to improve the relevant system of the superior right of interest in administrative contracts in China,including the basic principles,entity norms,procedural control and relief approaches.