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美国作业代写:The dissolution of the administrative contract

2018-01-15 来源: 51due教员组 类别: Essay范文

下面为大家整理一篇优秀的essay代写范文- The dissolution of the administrative contract,供大家参考学习,这篇论文讨论了行政合同的解除。在行政合同之中,行政主体并非以民事主体的身份而是以行政主体的身份与行政相对人订立关于民事权利义务的协议,以合同的方式来达到维护与促进公共利益的目的。行政合同解除类似于民事合同的解除。行政合同解除是在行政合同成立后,基于行政合同订立双方或者是单方面的意愿,符合行政合同解除条件,终止合同关系,未履行内容不需要继续履行,已履行的部分恢复原状或补偿损失。

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In the administrative contract, the administrative subject is not the civil subject's identity but the administrative subject's identity and the administrative counterpart to enter into the agreement on civil rights and obligations, in order to maintain and promote the public interest in the way of contract.

The conclusion of the administrative contract is to ensure the smooth realization of the administrative goal, therefore, the contract which is not the party of the administrative subject is not the administrative contract. But this does not mean that all the administrative subjects involved in the contract is the administrative contract. The contract made by the administrative subject as a civil subject can only be a civil contract;

The purpose of the administrative contract is to ensure the realization of administrative functions, and to safeguard the public interests, not for their own interests. For the construction of highways, airports, administrative bodies and construction enterprises signed the investment construction contract.

Administrative contract, as a legal act of both parties, should be based on consensual parties. Of course, the agreement between the two sides is not equal to the goal of the two parties to conclude the contract, the administrative subject to enter into the administrative contract is for the public interest, the administrative counterpart is for their own interests.

In the fulfillment of the administrative contract, the administrative subject enjoys the right of administrative advantage and benefit. The parties in the administrative contract do not have the full equal legal status, according to the needs of the State administration, the administrative subject can change or dissolve the administrative contract unilaterally, which is called the administrative benefit right of the administrative subject.

The disputes of administrative contracts are subject to the adjustment of administrative substantive law and administrative Procedure Law. The parties to the administrative contract have contradictory disputes arising from the performance of the contract, mainly through administrative remedies, only when the administrative law norms are not adjusted to apply the relevant civil and commercial law.

With the continuous deepening of China's administrative legal system, as an important means of flexible management, administrative activities are widely used in the State administration of the activities of a large number of applications. Its role is increasingly prominent:

The conclusion of the administrative contract, to a certain extent, can better protect the administrative objectives, clarify the specific relationship between the rights and obligations of both parties, based on the administrative advantages and interests of the administrative relative to the role of supervision and management.

As far as the administrative counterpart is concerned, the establishment of administrative contracts can effectively protect their lawful interests in front of the strong administrative subjects, and better exert the enthusiasm and creativity of the market subjects.

The termination of administrative contract is similar to that of civil contract. The rescission of administrative contract is after the establishment of administrative contract, which is based on administrative contract or unilateral intention, conforms to the condition of rescission of the administrative contract, terminates the contract relationship, does not fulfill the content, does not need to carry out the performance, part of the restitution or compensation loss.

In our country, considering the dual attribute of administrative contract, the rescission of contract should be dealt with separately. Taking into account the requirements of the administrative contract in terms of acceptability and so on, the contract should be discharged and the administrative contract should be dissolved according to the parties ' wishes. Based on the power of administrative contract, according to the requirement of priority to realize public interest, we should improve the system of administrative contract rescission through legislation.

If the situation changes, the administrative subject may amend the contract after the necessary consultation with the relative person, or the dissolution has completely lost the fulfillment of the contract, if the lifting has a strong emergency, in order to avoid serious loss of public interest, the administrative subject enjoys unilateral rescission right. However, based on the principle of reliance interest protection, the administrative subject must compensate the administrative counterpart, and in addition, it is necessary to guide the unilateral rescission of the administrative subject according to the principle of legitimacy.

The right of unilateral rescission of administrative subject means the administrative subject is based on the important public interest and has the right to benefit the administration, in order to avoid the serious loss of public interest and to realize the contract termination through unilateral intention when the situation changes. This right applies only to the prevention of social emergencies or the removal of significant damage to public welfare, and to the appropriate compensation to the counterpart. The right of unilateral rescission of administrative subject must be strictly restricted.

In substantive law, the administrative subject should have the following elements: the premise of changing circumstances. That is, the precondition of the unilateral rescission of administrative subject is that the objective situation and the legal policy of the administrative contract have changed. In order to safeguard the public interest.

The main purpose of administrative action is to safeguard public interest, to realize the maximization of public interest and to terminate the administrative contract unilaterally. The administrative subject's unilateral dissolution of the administrative contract must be based on safeguarding the important public interest, preventing the public interest as the pretext of damaging the relative person's interests and becoming the difficulty of regulating the unilateral rescission of administrative subject. In recognition of the primacy of the public interest, it is permissible to allow such necessary interference to private persons only if the proceeds obtained in the defence of the public interest are significantly greater than the private legitimate interests of the damage. Therefore, the relationship between public interest and private interests should be seriously measured in the unilateral rescission of administrative subject, so as to prevent the administrative subject from unilaterally violating the lawful interests of the administrative counterpart. Appropriate compensation for the loss of the administrative counterpart should be taken as a necessary measure. If the administrative subject must terminate the administrative contract, it should be based on the principle of freedom of contract and pay attention to the equal rights and obligations of the parties. According to the principle of protection of reliance interests, the administrative subject should be compensated appropriately.

In procedural law, administrative procedure can well limit the power of administrative subject and promote the realization of administration by law and reasonable administration. Therefore, it is possible to protect the lawful rights and interests of the administrative counterpart by restricting the right of unilateral rescission of administrative subject through administrative procedure. In order to prevent abuse of their rights, the rights must be subject to procedural law, such as the consultation of the two sides, the relevant major issues of the notice, the timely holding of hearings. Based on the strength of administrative power and the difficulty of defining public interests, judicial review should be given to the right of unilateral rescission of administrative subject. Whether the rescission of the right of unilateral rescission of administrative subject conforms to the need of the public interest, the court should make a review to prevent the public interest from becoming the grand reason for the administrative subject to exercise the right of rescission.

The court may, at the request of the administrative subject, the administrative counterpart or the administrative contract, decide whether or not to terminate the administrative contract through the proceedings. The discharge of administrative contracts is mainly as follows:

In accordance with the requirements of the administrative body, follow the corresponding procedures to terminate the administrative contract. The precondition is that the administrative subject voluntarily abandons the unilateral rescission right.

The administrative contract shall be dissolved in accordance with the request of the administrative counterpart. First, because the administrative subject has the gross negligence, at this time relieves the administrative contract, must give the administrative opposite person the appropriate compensation; Secondly, the administrative subject unilaterally forcibly request the administrative counterpart to terminate the contract, make the change is beyond the acceptable scope of the relative person, third, because of the occurrence of force majeure.

Terminate the contract at the same time as the parties. If the administrative contract, the interests of both sides of the balance, as a result of changes in circumstances need to terminate the contract, both parties can make this request.

It is a new subject in our country's legislation and practice to terminate the administrative contract right of the court, and it is worth discussing whether our country needs to give the court the power to dissolve the administrative contract.

The administrative contract has the dual attribute, namely the acceptability and the power nature, therefore should consider its duality when dealing with the legal consequence of the administrative contract rescission.

If the administrative contract is dissolved because the administrative subject and the administrative counterpart are relieved, the consequences must be carried out in accordance with the relevant provisions of civil and commercial law.

If the administrative contract is dissolved because of the important public interest, the administrative subject unilaterally exercises the right of rescission, according to the basic principles of honesty and trustworthiness, reliance interest protection and so on, should make appropriate compensation to the administrative counterpart.

Administrative power is too large in the administrative field, especially for the administrative contract, for the public interest, if the administrative subject changes arbitrarily or relieves the contract, the lawful rights and interests of the administrative counterpart can not be guaranteed. Therefore, in our country, the specific administrative behavior disputes are generally solved through administrative reconsideration and administrative litigation. Among them, for the administrative cases of admissibility standards, the court is mainly to define specific administrative acts against the legitimate rights and interests of the relative person, in the admissibility is mainly Minting trial. However, the administrative contract differs from the civil contract, while our legislation does not include the settlement of administrative contract disputes within the scope of administrative reconsideration and administrative litigation. It belongs to the Minting trial, in the administrative contract those with the nature of public law content, the use of private law rules to trial is not appropriate, can not maximize the protection of the interests of the administrative counterpart. On the one hand, the court can not rely on such cases, on the other hand, the administrative counterpart can only solve the administrative disputes by means of civil remedy, which restricts the development of the administrative contract relief system to a great extent. In view of the present situation of our country's legislation and judicature, and considering that we should give full play to the initiative of Judicature in practice, we should fully take into account the relationship between the causes of disputes and administrative contracts, and differentiate them according to the nature of the contract. When the dispute of the administrative contract is due to the inability to realize the right of claim, the court may invoke the rules of Civil Procedure Law. If the cause of the dispute is that the administrative counterpart is dissatisfied with the administrative subject, because it involves the power factor in the administrative contract, the Court may invoke the regulation of Administrative Procedure Law at this time.

In recent years, administrative contract as a way of administration has been widely used in the field of administrative management. Moreover, the scope of application of administrative contract and the way of remedy are not clear. The key to the dissolution of administrative contract is determined by the dual attribute of administrative contract. Therefore, how to balance the conflict between the public and the individual becomes the breakthrough point of the administrative contract rescission. In order to solve this problem, it is necessary to set up an entity's lifting standard from two aspects of both entity and procedure, and then to regulate the termination of the contract through the lawsuit procedure.

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