Research On The Arbitrability Of Administrative Contract Disputes

The development of society has led to the expansion of state functions and the growing awareness of citizens' rights.The development of society has led to the expansion of state functions and the growing awareness of citizens' rights.The simple unilateral administrative order method has not been able to fully adapt to the development of a society ruled by law.With this,administrative contracts have emerged and been adopted as a more "softer" form of administrative management.Widely used in administrative activities.The timely and fair resolution of administrative contract disputes is a guarantee of the advantages of the administrative contract system.China's existing administrative contract dispute resolution mechanism cannot completely and effectively resolve administrative contract disputes,and related legislation has contradictions and loopholes,which has led to different court attitudes in judicial practice.In the academic and practical circles,there are disputes over whether administrative contract disputes can be resolved by arbitration.However,the advent of the practice of applying arbitration to resolve administrative contract disputes in the judiciary has forced us to take a fresh and rational view of this issue.Proposition.As an important part of ADR,arbitration has obvious advantages in the settlement of administrative contract disputes over dispute settlement mechanisms such as negotiation,mediation,administrative reconsideration,and administrative litigation,and the professionalism,confidentiality,and efficiency of the arbitration model The characteristics are in line with the need for timely and fair settlement of administrative contract disputes.The basis for arbitration is "the freedom of expression of the parties 'intentions".The basis of its effectiveness is to obtain the parties' common intentions,and actively grant independent third parties the power to resolve disputes between the parties.Authorization of the parties And the freedom of meaning is the theoretical basis and legitimacy support of the entire arbitration mechanism.However,a large number of civil factors in administrative contracts,such as equal negotiation,agreement of expression of interest,and party authorization,are in line with the arbitrable theoretical basis and legitimacy basis.The major developed countries and China's Taiwan region have practiced arbitration to resolve administrative contract disputes with good results.In the process of signing an administrative contract,it is also a common practice for parties to the administrativecontract to agree on arbitration clauses in the administrative contract.In China's judicial practice,there is also a phenomenon in which the court recognizes the effectiveness of the arbitration agreement between the parties to the administrative contract.Based on the distinctive characteristics of the behavior of the two parties in the administrative contract itself,it is necessary to classify administrative contract disputes in different situations.Without prejudice to the exercise of public power,in administrative contract disputes that are not caused by other administrative actions,Respecting the parties 'choices,allowing arbitration to be used in administrative contract dispute resolution,forming a diversified dispute resolution mechanism with existing dispute resolution methods,providing more options for parties to choose dispute resolution approaches,meeting the parties' demands,and reducing the court The trial pressure has its feasibility and necessity.After all,the purpose of the law is to provide parties with more optional rights,and it is not a way to limit dispute resolution.Therefore,this article believes that respecting and maintaining the design of the dispute resolution path of the "Arbitration Law" and allowing administrative contract disputes to be settled through arbitration are of practical significance,and may be a solution to the problem.