On Legal Regulation Of Administrative Contract Privileges

On the basis of other country's similar experiences, the basic theory of the privilege control in administrative contract has been studied in this paper and the basic policy for the privilege in administrative contract has been proposed. In our country's administrative contract practice, the two parties in the administrative contract are in unequal states since the government enjoys some kind of privilege in such contract. Therefore there are many cases involving"breach of contract of the government according to law", which are special and queer but a lot in number. The administrative contract often contains unfair terms and conditions that may cause huge loss to the non-government party and loss the contract's original active role. Therefore, it is necessary to effectively control the government's such privilege in administrative contract. Only by doing this can the administrative contract develop smoothly. And the government privilege in the contract should be further discussed to form a privilege control system for China's administrative contract policy. The paper has paid special attention to the status quo of the country's privilege in administrative contract, the distinction between administrative contract and civil contract, the meaning, main content and basic features of the privilege in administrative contract, and the cause and value of such privilege. And the paper also argued the necessity of the privilege control in administrative contract by discussing the basis and theoretical evidence for such control in terms of privilege control, legal administration and final judicial judgment, etc. In addition, the paper has observed the legislation and judicial practice of control over privilege in administrative contract in foreign countries and Taiwan, offering practical terms and experiences in this aspect. By using relevant theories and research results of the control over free administrative judging, the paper has made several proposals for constructing a privilege control system for our administrative contract affairs. Since the transformation of the administrative law from restrictive nature to controlling type, the privilege control for the administrative contract should establish its own comprehensive mechanism from the public, private and administrative perspectives. The mechanism should not only contain"after contract"control, but also"before and under contract"controls, and should not only establish"regulatory control"but also"process control","principle control"and"remedy control", so as to form a sound and rational control system which combines modern administrative law and legal control system.