Study On The Legal Nature Of Government Procurement Contract

Government procurement is an important part of government public expenditure and an important means of national economic regulation.Under the condition of market economy,the relationship of rights and obligations between the government and suppliers is defined by signing a contract.Therefore,the government procurement contract is the core of the government procurement system,but its legal nature has been controversial.At the same time,the legal nature of government procurement contract has the forerunner significance to the study of government procurement contract.This paper focuses on the legal nature of government procurement contracts,which is divided into four parts:The first part introduces the general situation of the legal nature of government procurement contract,including its definition,feasibility,necessity and related theories.There are four theories about its legal nature,namely civil contract theory,administrative agreement theory,mixed contract theory and two-stage theory.As the mixed contract theory lacks the support of practical operation,the two-stage theory belongs to the civil contract theory for the judgment of the legal nature of the contract.Therefore,this article only discusses the civil contract theory and the administrative agreement theory of two mainstream views.The second part summarizes the legal nature of government procurement contracts in the domain practice.It is generally considered that government procurement contract belongs to civil contract at the level of central legislation.There are disputes at the local legislative level.For example,"Sichuan Contract Supervision Regulation" stipulates that government procurement contracts belong to civil contracts.Provisions on Administrative Procedures of Hunan Province,etc.,stipulate it as an administrative contract.In judicial documents,due to the promulgation of the Civil Code,the Judicial Interpretation of the Contract Law is invalid,but the Judicial Interpretation of the Contract Compilation of the Civil Code has not been promulgated yet.At the same time,judicial documents involving administrative agreements do not have relevant provisions.Therefore,it is impossible to judge the legal nature of government procurement contracts in judicial documents.In judicial practice,there are disputes about the legal nature of civil contract and administrative agreement.The third part is about the extraterritorial investigation of the legal nature of government procurement contract.In the common law system,there is no distinction between civil contract and administrative agreement in both the United States and the United Kingdom,but the legal nature of government procurement contract is obviously different from ordinary contract because of the special rules applied to it.In the civil law system,France defines the government procurement contract as an administrative agreement,while Germany considers it as a civil contract under the influence of the Treasury theory,but there are other views.The fourth part is the definition of the legal nature of government procurement contract.First of all,since the nature of the government procurement contract is based on the logical premise of recognizing the existence of many contract types,such as civil contract and administrative agreement,this paper first analyzes the establishment and development of the administrative agreement system in our country.Secondly,the author combs the mainstream judgment criteria of civil contract and administrative agreement,and believes that the legal relationship is the core standard to judge the nature of the contract,and the purpose of the contract is the auxiliary standard.Therefore,this paper adopts the standard of "object of contract theory",supplemented by the standard of "subject and purpose theory".Thirdly,the author believes that the government procurement contract reflects the administrative legal relationship in the establishment of basis,establishment of procedures and other aspects,and reflects the public welfare in the provision of public services and public security and other aspects.Therefore,government procurement contracts meet the relevant standards of administrative agreements.Finally,the analysis of the reasons of civil contract theory concludes that its view is not reasonable.Based on the above analysis,the final conclusion is that government procurement contract should be defined as administrative agreement.