论我国行政合同诉讼制度的建构

【作者】 刘艳平；

【导师】 李宝奇；

【作者基本信息】 延边大学 ， 宪法与行政法， 2007， 硕士

【摘要】 行政合同是源于与西方大陆法系国家行政法理论的重要概念，行政合同作为一种新型的管理手段，体现了现代的行政民主思想。以其灵活性、高效性、民主性而备受世界的推崇。它的出现不仅丰富了行政管理手段，促进行政的民主化进程，而且还将具有理论上的开创性，它以合同的方式实现公法的目的，体现了公私法的互补与融合，使权力社会化契约化进程中的具体体现。也正是因为行政合同的这些优点，自改革开放以来，行政合同就逐步以自己特有的面貌，应用于我国的行政管理实践中，并且在调动民间资源、促进公共行政多元化方面发挥着日益重要的作用。但是由于行政合同在我国的发展历史还不算长，还属于一个新生事物，行政合同制度本身并不完善，理论上的困惑造成行政合同立法上的空白，进而导致了我国行政合同运用中的混乱与无序，随着行政合同纠纷的日益激增，行政合同救济制度明显滞后的问题也日益突出，特别是在行政合同各救济中的行政合同诉讼救济，作为对行政合同最后也是最好的保障，其发展更是与行政合同的发展不同步，存在的问题已影响到行政合同的广泛应用，本文就从建构行政合同诉讼制度的必要性开始，参照西方国家行政合同诉讼制度对如何建构我国的行政合同诉讼制度提出了具体的构想。本文从整体上分为六个部分。第一章是绪论部分。主要对本文的研究目的、研究范围、及研究方法作了简单的概括，并对文章的写作初衷进行了介绍。要建构我国的行政合同诉讼制度，首先必须了解行政合同的基本概念，因此，本文的第二章首先介绍了行政合同的产生，行政合同的界定，通过对大陆法系的法国、德国和英美法系对行政合同的界定，来论述我国行政合同的界定。这部分对行政合同的概述为下面的论述作了铺垫。第三章首先对我国行政合同纠纷的司法外救济，即仲裁、协商、复议的现状进行了分析，接着分析了行政合同的司法救济，即行政合同诉讼救济现状。进而得出行政合同诉讼是行政合同纠纷救济的最好方式。接着，笔者分析了我国行政合同诉讼救济混乱的原因，最后，得出我国行政合同诉讼应纳入行政诉讼救济。第四章主要对国外的行政合同诉讼制度进行了比较论证。笔者把国外行政合同诉讼救济制度分为大陆法系和英美法系两部分，并选择典型国家的制度进行了论述，希望对我国的行政合同诉讼制度建构有所借鉴。第五章是本文的关键所在，在本章中首先论述了我国行政合同立法完善的必要性，及我国行政合同立法模式的选择，接着笔者对行政合同诉讼具体的制度设计分几个部分进行了论述，主要从行政合同诉讼应遵循的原则、主体资格问题、举证责任、起诉期限和诉讼时效、证明标准、审判依据及判决形式、调解制度的引入、赔偿与补偿等问题进行了分析。结语部分是在对行政合同诉讼制度的整体分析后，再次提出了我国建立行政合同诉讼制度的必要性，并对全文在理论上进行了总结论述。更多还原

【Abstract】 Administrative contract come from with western continent law department national administrative law important concept of theory, the administrative contract has reflected the modern democratic thought of administration as a new kind of management. But praised highly by the world fully with its flexibility, efficiency, democracy. Its appearance not merely enriches administrative management, promotes the administrative democratization process, and will have initiative in theory, it realizes the purpose of the public law by way of contract, have reflected complementation and integration, concrete embodiment that made in the socialized agreement process of power of the common private law. Because these advantages of the administrative contract just, since reform and opening-up, the administrative contract is applied to the administrative management practice of our country on with one’s own characterized appearance progressively, and is playing an increasingly important role in shifting folk resources, promoting the public administration to be pluralistic.But because the developing history in our country of the administrative contract is still not long, also belong to a new things, the administrative contract system is not complete, causing the administrative contract to legislate in the blank on puzzledly in theory, and then the one that has caused the administrative contract of our country when used is confused and unordered, with the increasing sharply day by day of administrative contract dispute, it is outstanding to relieve the question that the system obviously lags behind in administrative contract day by day too, especially the administrative contract lawsuit in the administrative contract is each relieved is relieved, as to the best guarantee that the administrative contract is too finally, its development is and the administrative development of contract is out of step even more, the existing problem has already influenced the wide application of the administrative contract, this text constructs the necessity beginning of the lawsuit system of the administrative contract from building, have put forward the concrete idea to that how to build the administrative contract lawsuit system of constructing our country according to administrative contract lawsuit systems of western countries. This text is divided into six parts on the whole.Chapter one is a introduction part. The purpose of main study on this text, research range, and the research approach has done the simple generalization, and has made an introduction to the writing original intention of the article. It must understand the basic conception of the administrative contract at first to build the administrative contract lawsuit system of constructing our country, so, chapter two herein has introduced the production of the administrative contract, definition of the administrative contract at first, pass continent France, Germany, Great Britain American and French department on law correctly to administrative definition of contract, to describe the definition of the administrative contract of our country. This part foreshadows following argumentation to the summary of the administrative contract. Chapter three was relieved outside the administration of justice to the administrative contract dispute of our country at first, the current situation arbitrated, consulted, reconsidered has been analyzed, then has analyzed the administration of justice of the administrative contract is relieved, relieve the current situation in i.e. the administrative contract lawsuit. And then it is the best way in which an administrative contract dispute relieves to obtain the administrative contract lawsuit. Then, I have analyzed that relieve the confused reason in administrative contract lawsuit of our country, finally, should include to obtain the administrative contract lawsuit of our country in administrative litigation and relieve.Chapter four mainly compares administrative contract lawsuit system of foreign countries to prove. I relieve foreign countries administrative contract lawsuit system divide continent law tie and Great Britain American and French department two part into, choose typical system of country go on, describe, hope administrative contract lawsuit system in our country build, construct to some extent drawing lessons from. Chapter five herein key point, expound the fact of our country administrative contract legislate complete necessity at first among chapter this, and of our country administrative contract legislative choice of mode, author divide to administrative contract lawsuit concrete system design into odd parts go on, expound the fact then, principle that mainly should be followed from the administrative contract lawsuit, qualification question of the subject, burden of proof, prosecute time limit and lawsuit prescroption, prove standard, try basis and judgement form, introduction, compensation to mediate system and compensate, etc. question go on, analyze. Conclude the speech part until system whole analyze, to administrative contract lawsuit, have proposed the necessity that our country sets up the lawsuit system of the administrative contract again, and has summarized and describes the full text in theory.更多还原