Research On Judicial Review Of Administrative Contract Conduct

Administrative contract,whether in the academia of administrative law or in judicial practice,is a controversial and often new topic.With the gradual establishment of service-oriented government and the rise of modern administrative new governance models such as public-private cooperation and privatization of public affairs,administrative contracts,a product of the integration of "power factors in public domain and freedom of in private domain",have been widely used.In recent years,the application of administrative contract in China's public administration has been expanding,and the application mode has been constantly renovated.This more flexible governance mode has flourished in practice.At the same time,the widespread use of administrative contracts in the field of administration will inevitably lead to the frequent disputes of administrative contracts in practice,and a large number of disputes of administrative contracts emerge.However,China has not yet formed a complete and unified administrative contract system,and the judicial review of administrative contract has been showing a "fragmentation" pattern in judicial practice due to insufficient theoretical research and lack of legislative provisions.The recent amendment of the Administrative Procedure Law and the promulgation of the new judicial interpretation provide a new opportunity for the development of the judicial review system of administrative contracts.However,how to better implement the new law,whether there will be new problems at the level of judicial operation,and whether there is room for institutional renewal at the theoretical level are all issues worthy of our continuous consideration.Therefore,from the perspective of judicial review and based on the empirical summary in the judicial field since the implementation of the new administrative procedure law in recent years,this paper makes a concrete and in-depth study on the theoretical basis and system construction of judicial review of administrative contracts,with a view to solving the puzzles of related theoretical issues and judicial technology issues of judicial review of administrative contracts and making a Counter-Inference through specific system construction.It is used to solve practical problems in judicial practice of administrative contract.To define the concept of administrative contract accurately and clarify the essence of administrative contract is the premise of effective judicial relief for administrative contractdisputes.Correctly defining and identifying administrative contracts is also the key to accurately applying the law in all links of judicial review,filing,trial and judgment.Therefore,based on a comprehensive investigation and analysis,the concept of administrative contract is reshaped,and the identification criteria of administrative contract are clarified.It should be pointed out that administrative nature is the fundamental attribute of administrative contract.But administrative contract is not equal to the conduct of administrative contract.This paper boldly establishes the collective concept of administrative contract act,and holds that administrative contract conduct is a continuous and dynamic actor composed of many stages and acts because it involves the process of making,fulfilling,changing and terminating administrative contract.That is to say,as long as all administrative acts involved in the process of making,fulfilling,altering and terminating administrative contracts are administrative contract acts.The conduct of administrative contract is a collection of acts involving administrative contract.Therefore,at every stage of the process of administrative contract,there may be disputes over the administrative contract because of the action or omission of one of the acts.The concept of collective action of administrative contract is not only the administrative contract itself,but also the object of judicial review of administrative contract litigation.It is also the central concept of this paper.Therefore,the judicial review of administrative contract acts may also be carried out in accordance with the process of administrative contract occurrence,in different stages of specific review of different acts.It is the basic premise to study the judicial review system and the specific trial rules of the administrative contract conduct by investigating the occurrence process of the administrative contract conduct and the basic patterns of the corresponding stages in the process.Through combing and summarizing the judicial practice of administrative contract cases in our country,as well as investigating and analyzing the specific systems of judicial review of two kinds of administrative contract in foreign countries,this paper launches a realistic inspection and rational reflection on judicial review of administrative contract acts in our country.As far as the construction of judicial review system of administrative contract in our country is concerned,we should form our own "native" system design or basic conception which conforms to China's region,situation,culture and system.Special attention is paid to the reshaping of litigation structure of administrative contract and the determination of judicial review mode of administrative contract.The exclusive nature of administrative contract shapes a two-way administrative litigation structure in which theadministrative subject and the relative per capita may enjoy the right of action.Meanwhile,substantive settlement of disputes over administrative contract is placed under the leadership of litigation function and purpose.As far as administrative contract litigation is concerned,"two-way inverted triangle structure" will be the ideal form of administrative contract litigation structure in China.Judicial review is the ultimate and most effective mechanism for the settlement of administrative contract disputes.The first question is the choice and determination of the mode of review.The choice and determination of judicial review mode of administrative contract conduct in China should include disputes over administrative contract in the scope of accepting cases in administrative litigation and establish a public law review mode.At the same time,a set of special examination mode should be established in administrative litigation procedure,which is suitable for administrative contract cases.Firstly,we should establish a model of public law review.The fundamental attribute of the administrative nature of administrative contract is the foundation of establishing the mode of public law review.The establishment of jurisdiction and trial mechanism of administrative tribunal is the guarantee of establishing public law review mode.Adhering to the principle of public law review mode,some special existing modes can be appropriately retained for gradual transition.Secondly,the mode of classification review should be established under the public law mode.Privilege factor is the basis of classified review mode.Whether administrative organs exercise,"original complaint request + administrative power factor(exercise of administrative privilege)" is the choice node of review mode.At the same time,the application of process review method is also a special perspective of this paper to examine the judicial review mode of administrative contract behavior.Based on the process of the development and operation of administrative contract behavior itself,it not only keeps dynamic and continuous,but also clarifies and separates the specific review mode of administrative contract behavior.This process research benchmark,which complements the law of the administrative contract conduct itself,presents a comprehensive,dynamic and substantive basic process review model of the judicial review of the administrative contract act.From the perspective of the basic principles of judicial review,this paper holds that it is necessary to create special rules of administrative procedural law that are specificallyapplicable to judicial review of disputes over administrative contracts.The dynamic process behavior of administrative contract is demonstrated and analyzed step by step,and then a conclusion is drawn.Although the judicial review of administrative contracts in terms of review methods and rules shows more characteristics that blend with civil trial rules or develop to its own,the principle of legality of administrative acts may always be the fundamental principle of judicial review of administrative contracts.Then it forms the basic viewpoint of the principle of examining administrative contract cases,that is,the principle of validity review should be applied preferential rights;the principle of validity review should be applied to the validity of administrative contract based on public interests;and the principle of validity review should be applied to the performance of administrative subjects and their counterparts.Principle.In particular,it is pointed out that the conduct of administrative contract is the object of judicial review of administrative contract;specific rules of judicial review of administrative contract conduct should be analyzed at different stages from the perspective of process theory of administrative action.In the construction of specific litigation system,this paper studies the multi-dimensional review of the prosecution conditions of administrative contract litigation and the specific system structure of substantive litigation.In the judicial practice of administrative litigation,the examination of prosecution conditions is a very important but complicated issue.Only the people's court of action that meets the prosecution conditions will accept it.It determines whether a lawsuit can really enter the judicial review process.In order to prevent the occurrence of "indiscriminate prosecution" and to ensure that the people's courts hear administrative cases fairly and promptly,prosecution must meet the conditions prescribed by law.Administrative contract cases also face the examination of prosecution conditions at first.Based on the characteristics of the administrative contract itself,the legal relationship formed by the administrative contract belongs to the administrative legal relationship.Many rules of civil law can not be applied,and should be solved by applying its own special rules through administrative litigation.In administrative contract litigation,a series of special rules which are different from ordinary administrative litigation must be applied.This paper attempts to discuss the rules of evidence in administrative contract litigation,the application of law,the way of judgment and non-litigation enforcement.However,in the judicial review of administrative contracts,onlyby responding to the plaintiff's substantive demands and substantially resolving disputes over administrative contracts can we protect the rights of citizens,harmonize the relationship between officials and the people and promote substantive rule of law.