Problems of administrative contract litigation

The concept and legal status, administrative contract

The administrative contract, refers to the administrative organ to exercise the administrative power, for administrative purposes, and the administrative counterpart, or other administrative organs, or with the administrative organs of civil servants, the consensus reached by both sides agreed the rights and obligations of the agreement. With the transformation of administrative function expansion of state and government function, the use of administrative contract is becoming more common in administrative management. In our country, with the development of democracy and the rule of law, the planned economy to a market economy, the functions of the government from emphasizing the change management model to the service model, administrative organs in administrative management, realize the goal to administrative contract means, has gradually been the administrative organ's attention, the scope of application in administrative management more and more widely. In our common administrative contract are: scientific research contract, purchase contract, the contract state expropriation, state land use contracts, city housing demolition contract, enterprise contract, small and medium-sized enterprises, small and medium enterprises transfer contract of lease contract, public construction contract, administrative contract, administrative contract, cooperation in civil servants' responsibility contract, plan family contract, public facilities construction business franchise contract (BOT) etc..

In our country, solution of administrative contract disputes, between administrative organs internal contract and the administrative contract dispute, generally resolved through administrative channels; and the administrative organ and the administrative counterpart (that citizens, legal persons and other organizations) because of administrative contract disputes, unless the parties agreement, administrative appeal and administrative reconsideration to solve, and ultimately to resolve through litigation. Accept the Chinese court in administrative contract dispute case, in addition to the land contract, contract, enterprise contract management city housing demolition contract and a small number of cases of administrative contract as an administrative case by the court administrative trial court, usually as a civil case in civil proceedings. As the administrative contract and the implementation, the administrative organ to exercise the administrative power, the administrative contract is designed in order to realize the administrative goals, both parties the unequal status, the two parties can not be completely autonomous and other reasons, makes the administrative contract with the specific administrative act is very high. The administrative contract dispute case, the court as a civil case judgment, will cause the applicable law, difficult cases execute many laws, the influence on the administrative counterpart's right relief, or affect the social and public interests. So, the administrative private party and the administrative organ for administrative contract disputes, including administrative dispute is a dispute over civil rights and interests, should be accepted as the administrative cases, the trial judge should first in the application of administrative law basis of administrative act is legal, civil law is applied to solve civil disputes.

Two, the administrative organ establishment and implementation of administrative contract behavior is a specific administrative act

The administrative organ establishment and implementation of administrative contract, the exercise of state administrative power in its administrative authority within the scope of the act, the purpose is to realize the administrative goals identified in the contract, the specific rights and obligations of administrative counterpart, in the course of implementation of administrative organs supervision, commanding authority, and in the execution of the contract according to the need of the social public interests and according to the change of social circumstances, the administrative organ has the change, termination of lien. Therefore, the administrative organ establishment and implementation of administrative contract behavior is a specific administrative act.

The administrative contract is a means to achieve the national goal of administrative. Although the parties to achieve the purpose of each are not identical, such as the administrative relative person is to pursue civil interests, the administrative organ is to achieve administrative objectives, but the private interest is to achieve the goal of administrative premise. The administrative organ to exercise the administrative power through this special form of contract. The matters of administrative contract, some matters can be implemented in the form of administrative contract laws, regulations or administrative rules defined; some in the scope of administrative responsibility, laws and regulations is not limited to implement form, the administrative organ that can be selected under the administrative contract.

The administrative contract parties unequal legal status. The administrative body as a party to the contract, has a dual identity. It is the administrative contract by a party, and is in charge of the contract management. In the conclusion of the contract, the administrative organ is dominant, in the course of implementation of administrative organs, supervision and management of default shall be given sanctions and enforcement. For example: in the state-owned land use right transfer contract, the administrative organ, the transfer of land use right, mortgage, lease and other oversight, which can make them reasonable development and utilization of land resources, improve the rate and the social public interest use of state-owned land resources. In the relative people with serious fault of default, the administrative body can also exercise the punishment right unilateral, when necessary, may terminate the contract and do not give opposite party compensation.

Both sides in the administrative contract. Party autonomy is limited. The administrative contract is both parties agreement said, this is the main manifestation of the nature of the contract, embodies the principle of autonomy of civil law and commercial law. But the two parties of the contract and disposal of the rights of freedom is limited. Administrative organs according to the legal authority, according to the laws, regulations and provisions of the plan, and according to the needs of social and public interests conclude and perform administrative contract, even on the property rights can not be arbitrary punishment. The administrative relative party should also be under administrative law, the actual performance of the contract, not to economic compensation instead of performance of the obligations under the contract, not arbitrary to dispose of their own property rights. This is different from the civil contract total contract autonomy. For example: according to the "law on land management", the state because of the construction of the competent department of land of the state and collective or individual sign land expropriation of rural collective land contract, as the owner of the land users or as individual farmers, and shall not refuse to land expropriation; according to the City Housing Units Regulations "provisions" and other laws and regulations, due to city construction, the government and the original housing owners or users signed public houses by the housing units agreement, the demolition of the original housing, housing the original owners and public houses by the user, and may not refuse to influence the city construction, housing demolition. In this case, the administrative private party in administrative contract is signed is no choice, only to the resettlement and compensation according to the principle of the civil law consultation.

The specific nature of the administrative contract, the administrative contract dispute (essentially administrative disputes have the nature of civil rights) settlement mechanism cannot simply take civil disputes (such as civil conciliation, mediation, arbitration, civil lawsuit system etc.) solution.

Three, the administrative contract dispute according to law applicable difficulty hearing civil cases

In civil proceedings, the people's court shall examine the general civil contract and economic contract, mainly from the main body have the right, whether the violation of laws and regulations, meaning that is true, and are reviewed from third aspects such as any infringement of interests. That is the main consideration of compliance with civil legal conditions. The judgment of the court, the applicable law is relatively simple, mainly is the civil law, the legitimacy of the act of the parties is also relatively easy to determine. However, the administrative contract, execution, change, termination is legitimate, reasonable judgment, more complex. The people's court hearing a case of administrative contract, not only to the application of civil law, but also to apply administrative law. To review the legality of administrative organs and administrative judge each other's behavior, but also consider whether accord with the national interest and the social public interests. Some of the administrative contract in civil law, the normative judgment is valid, but the violation of administrative law, or damage the interests of the state, or damage the public interests, the administrative contract is not maintained such judgment. As the civil trial procedures, the entity judgment, has its limitations in the application of the law.

Administrative contract cases as civil cases, the people's court to limit the comprehensive review of the case. For example, the provision of the administrative litigation law "the defendant bear the burden of proof", and the provisions of the civil procedure law "who advocate who burden". The law, regulations and rules and regulations of administrative organs about administrative contract authority, procedures, matters of facts and legal basis, administrative counterpart is generally not understood, if this requirement as the administrative opposite party the burden of proof is generally difficult, if the plaintiff is not proof, may impact on the comprehensive review of the court the legitimacy of administrative behavior, consequences for the plaintiff. Of a cause, a certain industry, certain commodities national policy, national planning and development trend of information, the administrative organ has the superiority of exclusive or preempted, namely the parties "information asymmetry". In the lawsuit without the burden of proof of administrative organ, the administrative relative party will affect the rights, restrictions on the comprehensive review of the case the court judgment. Also, the provision of the administrative litigation law "in violation of the statutory procedures", "beyond the terms", "breach of privilege", as the revocation of the specific administrative act; and the law of civil litigation court review of civil legal issues, there is no such requirement. "Violation of statutory procedures", "beyond the terms", "breach of privilege" will cause the administrative contracts and administrative contracts are illegal or improper, it shall be revoked. And in accordance with the provisions of the Civil Procedure Law of the case hearing and judgement, would be incapable of action. Moreover, the provision of the administrative litigation law shall be revoked or part of the revocation of the specific administrative act, "to sentence the defendant to undertake a specific administrative act". This provision in the judgment of administrative contract cases is very necessary. Because of the administrative organs to matters of administrative contract processing, though some of them are illegal or improper, it shall be revoked, but if the court only the decision to withdraw but not at the same time the executive decision to conclude and implement the administrative contract, the administrative organ may give up the job, or give up the reasonable way to achieve the responsibility to administrative contract means. This is unfavorable to the administrative management. In such cases if only according to the civil procedure law and civil law, it is difficult to make the right decision.

Administrative contract cases as civil cases, the people's court may limit the substantive processing. The administrative contract and implementation of the contract, unless the law system should follow the civil law, economic law to adjust the principal of equality, also should follow the norms of the administrative law a lot. For example: the government sold the property of small state-owned enterprises, in addition to follow the relevant contract law, but also comply with the State Council "on the strengthening of the state-owned assets management work of the notice" (1990), the Interim Measures for the national system changes appoint, the Ministry of finance, state owned assets administration "on the sale of property and small state-owned enterprises" (1989), notice of the State Council office hall "on the strengthening of the state owned enterprise property right transaction management" (1994); city housing units, to abide by the "land management law", the State Council's "city housing demolition management regulations" and the relevant local laws and regulations; contract building public works, in addition to complying with the "construction law", "city planning law," "land management law", but also comply with the "Interim Provisions of construction bidding" (the State Planning Commission, the Ministry of construction in 1984), "construction engineering quality responsibility Provisional Regulations" (Ministry of construction in 1987), "on the strengthening of national key construction projects and large construction projects bidding management notice" (the State Planning Commission in 1991). Administrative trial firstly from the angle of administrative law review of administrative behavior, administrative law judge administrative organ establishment and implementation of administrative contract behavior is beyond the authority and breach of privilege, whether or not according to the fact, the program is legal, is a violation of the legitimate rights and interests of the relative party, whether or not to harm the interests of the state, or harm the public interests. In judging the administrative behavior, based on the fair problem solving the economic interests of the civil law. In the administrative judge, specialized training in general also has administrative law, administrative contract disputes in solution. However, by the civil trial judges to the administrative contract dispute as civil cases, are more likely to emphasize the contract parties treated as equal civil subject, is to use civil law and civil law theory analysis, which tend to ignore the administrative contract is the premise of the administrative organ to exercise the administrative power, which will caused by the applicable law is not complete. For example: the public works administration in signed with a construction company building a bridge of the construction contract. Stipulated in the contract the project must comply with the national building standards, the Contractor shall accept the supervision and inspection of construction quality of public project management department at any time. In the project construction, the project management department inspection, discovered the construction quality standards do not meet a certain part of the project, that is related to building materials standards need to improve. Therefore, the construction units: rework on the quality does not meet the criteria of section; the future construction will be the use of a high standard of new material. The two sides dispute, lawsuit to the court. If the case according to the general civil contract trial, both sides in the contract shall be equal in status, should be strictly in accordance with the contract requirements, the employer only for quality inspection and advice, not to improve building material standard; but if the trial according to the administrative contract, the contract and the implementation of administrative behavior, the administrative organ has the priority, in order to ensure the public interests, requirements engineering no danger of anything going wrong, have the right to regular inspection on the project, in the engineering quality is due to a material standard is not high causes, can put forward to improve the material standards, may be necessary to modify the contract. Of course, if the amendment of the contract the contractor to increase economic burden, to compensate.

Four, the cases of administrative contract in civil trial will cause the implementation difficulties

The administrative contract is generally related to the property interests, especially scientific research contract, purchase contract, the state enterprise contract, contract, construction contract the sale of small and medium-sized enterprises, public works, public facilities construction business franchise contract (BOT), the general standard is great. The contract dispute, if the court, the majority shall be determined by the court. If the administration won the lawsuit, the court for compulsory execution as the counterpart of citizens, legal persons and other organizations of property, in law is generally not difficult; however, if the administrative organ defeat, court of administrative organs (or government) property enforcement measures will be limited. The court can not take compulsory measures against countries, including not to take coercive measures to the state property, this is the general rule for a country. Because the national sovereignty is unified, the court is one of the organs of state power. Our national property, in addition to the authorization to the enterprise or business unit management, and conditional sanctions, in addition to allocated to the administrative budget, state-owned assets management departments of the state finance departments at all levels, the management of state-owned property, not the law clearly stipulates that the court can take custody, transfer, auction and other enforcement measures at present, also did not see such case. From China's "administrative procedure law" provisions of the third paragraph of article sixty-fifth (i.e. four kinds of implementation measures of administrative organs), the court has taken enforcement measures to the administrative organ shall expressly authorized by law, the execution of national property shall be limited within the law limits. This is not our legal system is not perfect, but the general issues of state theory. If the administrative contract cases the court according to the civil procedure law as the civil trial, the judgment administrative Negative Obligation and does not perform, the court can not enforce the state property, and no other special methods in the civil procedural law, the decision is incapable of action. The cases of administrative contract as an administrative case, appear this kind of circumstance, the court may adopt the provisions of the administrative procedure law on compulsory measures against administrative organs. Methods to solve the public power which is used in public law means. Of course, the administrative contract, implementation and relief system, should improve the administrative legislation, including the improvement of the administrative procedure law.

Five, the administrative contract dispute as the legal basis of trial in administrative litigation

China's administrative procedure law second stipulation: "the citizen, legal person or other organization believes that a specific administrative act administrative organ or its personnel infringe upon their lawful rights and interests, have the right to file a lawsuit to the people's court in accordance with this Law for the." The administrative contract is administrative organ specific administrative matters, the specific administrative relative party, can affect the rights and obligations of the administrative law, the legal consequences of the behavior of both sides, which belongs to the specific administrative act, which may bring an administrative lawsuit. Administrative procedure law article eleventh (eight) rule "that an administrative organ has infringed upon other personal rights, property rights," shall include the administrative contract dispute. Because the citizen, legal person or other organization and administrative organs in administrative contracts as well as the implementation of the disputes, is generally specific property disputes, should be included in the scope of administrative litigation. In the process of carrying out the administrative contract, if the relative party thinks that the administrative organ infringes its autonomy in management in the supervision, management, or that the behavior of the administrative organ for punishment or enforcement measures infringe upon their legitimate rights and interests, therefore caused opposite party refuses to accept the administrative dispute, can be directly according to the administrative procedure law of the relevant provisions of article eleventh of the administrative litigation.

The legal system about the administrative contract, the administrative management of our country is more and more important, should establish and perfect the relevant legislation as soon as possible. From the long-term development of the rule of law, should formulate and improve the related from the administrative contract law, establish independent specialized administrative laws and regulations, perfect the administrative litigation law in three ways.

(Once published in: "Method" network -- legal experts -- expert thesis -- the Liu Jie papersColumn, revised in February 15, 2008)

(author: Liu Jie, doctor of law, Beijing Dacheng Law Firm Shanghai branch lawyer, arbitrator of Shanghai Arbitration Commission)