论我国现行行政合同司法救济制度

Argument about China's Judicial Remedy of Administrative Contract

对行政合同的司法救济程序适用行政诉讼程序抑或民事诉讼程序,司法实践尚未统一。作者认为它非双方私法上权利平等的合意,它所体现的内容是行政法上的权利义务,主要应受行政法规的支配与约束,对它的司法救济程序应是行政诉讼程序,这也是行政合同作为行政法上的争议排斥其他司法救济途径的唯一选择结果。

Whether administrative litigation procedure or civil process will be applied to administrative contract judicial remedy procedure has not been unified in judicial practice. According to this paper, it is not an agreement on equal rights in private law between the two parties, but a kind of right and duty in terms of administrative law. It should be restricted and restrained by administrative regulations. Its judicial remedy procedure should apply to administrative litigation procedure, and it is the only choice for disputed administrative contract in excluding other judicial remedy methods.