Legal Theory Of Introduce The Contracting Negligent Liability To Administrative Contract And Establish The Legal System

Administrative contract is a form of administrative management that is produced by the introduction of civil contract in the field of administrative management.Because its establishment is based on the agreement between administrative subject and administrative counterpart through consultation,it is conducive to mobilizing the enthusiasm of social capital to participate in public projects.In recent years,it has been widely used in the field of administrative management in China.However,the construction of the legal system of administrative contract in China is obviously lagging behind,and the mechanism of solving administrative contract disputes is not mature.For example,liability for administrative contract negligence is not clear in the administrative legal norms of China.In judicial practice,liability for treaty negligence have be applied to cases of administrative contract for a long time.Of course,the phenomena have a lot to do with the lack of theoretical research on administrative contract.Liability for treaty negligence is an independent civil liability in China.When contract is not established,invalid,cancelled or confirmed to be invalid,a party with fault shall compensate for the loss of other party without fault caused by its breach of per-contract obligations.Administrative contract has the dual characteristics of administrative and contractual nature,and its contractual nature determines that in the process of concluding and performing an administrative contract,there must be situations in which the contract is not established,invalid,cancelled or confirmed to be invalid.In this case,there is often a problem of damage to the rights and interests of one party,what kind of responsibility should he claim to the other party,what is the basis of imputation,and how to get compensation.With the deepening understanding of administrative contracts and the need to resolve disputes,the Supreme People's Court made it clear through a retrial case in 2017 that such disputes belong to the liability for administrative contract negligence,and relevant provisions on liability for treaty negligence shall be applied in specific trials.However,administrative nature is the essential characteristic of administrative contract.Whether and how to introduce liability for treaty negligence should be supported theoretically.It is necessary and feasible to introduce liability for treaty negligence into administrative contract.As far as necessity is concerned,firstly,application of liability for treaty negligence is conducive to protecting reliance interests of both parties.Secondly,the application of administrative compensation liability to the protection of the trust of the administrative contract counterpart has limitation.Furthermore,the application of liability for treaty negligence does not help to establish the legal system of administrative contract.Fourthly,the application of liability for treaty negligence cannot reflect the administrative nature of administrative contract.As far as feasibility is concerned,firstly,principle of the good faith in administrative law is interlinked with the principle of good faith in civil law.Secondly,the trust protection of the administrative counterpart is consistent with the trust protection of the counterpart of the contract.Thirdly,characteristics of contract in administrative contract must have common rules with civil contract,and liability for treaty negligence belongs to one of such rules.Liability for administrative contract negligence and liability for treaty negligence are interlinked in principle,however the former belongs to administrative liability,the latter belongs to civil liability.Therefore,there must be some differences between the two on the basis of common ground.Liability for administrative contract negligence in China is the Liability of compensation of administrative subject by its breach of per-contract obligations,or although there is no fault but based on the protection of trust,it should bear the liability for damages for the loss of trust interests suffered by the other party,as well as the administrative contract counterpart should be undertaken damage compensate responsibility,compulsory performance and administrative sanctions for the loss of trust interests incurred by the administrative subject,because violation of the principle of good faith,when the contract is not established,invalid,cancelled or confirmed to be invalid.Liability for administrative contract negligence and liability for treaty negligence,mainly reflect the following similarities: First,same conditions of application,are in the contract is not established,invalid,canceled or determined not to have effect when applicable.Second,breach of contract obligations are the basis for liability.Third is to compensate for the loss of trust interest is the form of liability.Fourth,the scope of trust loss is direct loss in principle.Fifth,both parties of the contract can become the subject of liability.But,both also have apparent difference: First of all,fault is the basis of liability for treaty negligence,however,fault is the principle of liability for administrative contract negligence,and no fault is the exception.That is,administrative subject may bear the liability for administrative contract negligence when it is not at fault.Next,in addition to compensation for losses,there are compulsory performance and administrative sanctions in the form of the counterpart's liability.Finally,procedure of judicial relief directly of liability for administrative contract negligence only applies to the counterpart,and the administrative subject realizes the relief through the unilateral right of administrative priority.System construction of liability for administrative contract negligence should adopt the way of that apply mutatis mutandis liability for treaty negligence in administrative contract and stipulate some special rules according to the different characteristics of liability for administrative contract negligence,includes: administrative subject liability no-fault exception rule;the rule of different liability modes and unilateral judicial relief,as so on.