行政契约缔结原则研究

A research of principles of concluding administrative contracts

行政契约缔结原则,是指导和规范行政契约缔结的原则,它具有解释和补充法定欠缺、弥补行政契约内容不足、平衡当事人权利义务关系以及控制行政主体在行政契约缔结过程中行政权力行使的多维功能。基于行政契约的行政性与契约性的双重特点,其缔结原则可分为共通性原则与特殊性原则两类,其中,共通性原则主要由公开、公平和诚实信用构成;其特殊性原则主要有平等、竞争和有限契约自由原则。

The principles of concluding administrative contracts serve to guide and regulate the practice, having the functions of explaining, supplementing the legal inadequacy, balancing the relationship between the rights and duties of the party concerned and controlling the performance of administrative right by the administrative subject in concluding administrative contracts. According to the fact that administrative contracts involve both administration and contract, the principles of conclusion can be clarified as general principles and special principles, among which general principles are composed of openness, fairness, honesty and credit while special principles mainly involve equality, competition and freedom for limited contracts.