The Study on Privilege in Administrative Contract

【Abstract】With the continuous development of management methods， as the implementation means of administrative policy and social management ideal， the administrative contract has been widely accepted. Administrative areas contract to become the focus of people's attention. Administrative priority in administrative contract is to distinguish between private rights contract with the most critical characteristics of administrative contracts. But there are many problems of administrative priority in practice. In this paper， writer begins from the content of administrative priority and put forward myself proposals for the improvement of power supervision.

【Key words】administrative contract； priority； legal principles； perfect system

1. The Connotation of Administrative Priority

Administrative priority also known as Administrative priority of benefit， It refers to the qualification of unilateral coercive administrative body in the realization of the right to administrative tasks and to consider the public interest in accordance with law and the enjoyment of the office or on the physical condition of excellent benefits. It is statutory authority without prior agreement of the parties. The intention is to give the right to the administrative subject privilege in order to deal with conflicts of their national interests and personal interests in the administrative contract， to maximize the public interest.

2. The Characteristics of Administrative priority

First of all， administrative priority has statutory. Statutory administrative priority mainly reflected that there are stringent requirements in the content and exercised， Administrative Priority in particular in the supervision of the executive body of the contract， the command of the changes and the unilateral right to terminate.

Secondly， the Administrative Priority to Benefit is a special attribute of power. Specificity of Administrative Priority requires only the executive can exercise that right， and the other contract have no this right. Executive and others signed a contract during performance of the contract adjustment for changes in the needs of the public interest or national law， resulting in the need to modify or rescind the contract， the executive is entitled to exercise the power to unilaterally change or dissolve， thereby to contract losses caused counterpart， the executive should be given reasonable compensation. Such provisions， can avoid abuse of power occurs， the exercise also better able to standardize administrative superior usufruct.

Finally， the administrative priority has unilateral and irreversible. Specificity requires administrative priority can only be exercised by the executive， occurrence not have the conditions to continue to fulfill the contract in the course of implementation of the contract， the others have no right to exercise superior usufruct.

3. Improve administrative power proposal

With the transformation of government functions and social development， the administrative contract has become one of the main ways the government share of social and public services， the government as a national authority， the obligation to the legitimate exercise of the right superior benefits. However， due to excessive concentration of power， how to supervise the exercise of the rights management executive becomes particularly important. How to exercise supervision and management of this power， the author puts forward some suggestions as follows：

Firstly， establish and improve laws and regulations on administrative principles gifted usufruct. Legal principles are fundamental principles of the law， through the law always. In China's current legal system， should be part of the legal principles governing the exercise increased oversight of control administrative priority. Such as the principle of proportionality， We should exercise the executive authority administrative priority “price” to keep within a certain range； Priority principle of public interest， Safeguarding the public interest regarded as superior benefits to exercise the right prerequisites， all to the public interest as a starting point.

Secondly， improve the excellent usufruct counterpart compensation remedies. The executive in the exercise of administrative excellent benefits right， the other will cause some economic losses. We can develop policies to ensure that people can contract the relative litigation or arbitration to protect their legitimate rights and interests.

參考文獻：

[1]李煜興.行政合同制度比較、反思與重構[J].法學研究.2003.

[2]王芳.行政優益權行使的正當性及限制[J].廣西政法管理干部學院院報.2013.

[3]杜冰.行政合同中的優益權研究[D].西南政法大學.2009.

[4]余凌云.行政契約論[M].中國人民大學出版社.2000.

[5]蔣吉才，付東年.行政合同中相對人權利救濟制度研究.

作者簡介：于韜文，青島大學法學院，研究生，研究方向：憲法學與行政法學。