| With the continuous development of the economy and society,the new administrative means of administrative contract which the administrative subject governs the society appears and has been widely used in practice.For this kind of administrative means,the newly promulgated law <Certain Provisions of the Supreme People’s Court Concerning Trial of Civil Cases Involving People’s Mediation Agreements> includes administrative contract cases into the scope of administrative litigation,but only the counterpart of the administrative contract has the right to file administrative litigation according to law.In view of the situation where the counterpart of the administrative contract violates the administrative contract or fails to perform the contract according to the provisions of the administrative contract,the administrative organ can choose which way to pursue the liability,there is no law to stipulate.In practice,the default forms of the counterpart of the administrative contract are generally manifested as expected default,improper performance,incomplete performance and complete non-performance of the contract.In view of the default of the counterpart of the administrative contract,the administrative organ can first exercise the right of administrative advantage,supervise and guide the counterpart of the administrative contract,and even unilaterally change and terminate the administrative contract.If the administrative organ is unable to exercise the right of superior interest or fails to investigate the default liability of the counterpart of the administrative contract after exercising the right of superior interest,it can initiate non-litigation enforcement procedures.According to different types of administrative contracts and its own authority,the administrative subject can choose to execute according to its authority or apply to the court for execution if the non-litigation enforcement procedure cannot be started,the administrative subject can pursue the liability of the contravention of the administrative contract by bringing a civil lawsuit.The latter meaning of default has the following problems: firstly,the current law is not comprehensive and it is difficult to adapt the law.Second,the accountability procedure is not standardized;Third,judicial review is not comprehensive,review standards are inconsistent.In view of the diversity of administrative contract disputes,diversified dispute resolution mechanisms should be introduced in combination with the differences of the cases involved,so as to ensure the efficiency of administrative management and the realization of public interests.Within the existing legal system,we should improve the legal provisions on the administrative subject’s pursuit of the responsibility of the counterpart of the administrative contract,introduce procedures such as notification,consultation and hearing into the exercise of the right of superior interests and the initiation of compulsory execution by government organs,strengthen judicial review,form unified review standards,and clarify the applicable principles and rules of civil legal norms in administrative contract disputes.To provide institutional support and procedural guidance for judicial practice.To balance the public and private interests of the administrative contract is the core of giving full play to the function and value of the administrative contract.In order to promote the construction of social rule of law and the construction of "service-oriented" government,we should give consideration to the beneficial and administrative nature of administrative contract and provide theoretical support and system guarantee for the effective implementation and operation of administrative contract. |
