行政私法理论在合同制度中的展开——论行政私法合同的内涵、性质与界分

Extensive Application of Administrative Private Law Theory the System of Contracts:The Connotation,Nature and Division of the Contract Under Administive Private Law

面对行政实践中行政机关和法律、法规授权的组织广泛采用新型合同的情况,原有的行政合同和民事合同理论出现了解释上的困境,有必要借鉴行政私法(行为)的理论创造行政私法合同这一概念。这类合同有其独特的内涵和法律特征。行政私法合同综合了公法与私法的双重因素,是具有行政法、私法双重性质的合同。行政私法合同与行政合同、私法合同之间均存在着界限,亟需探讨此类合同的特殊法律问题。

In practice, administrative agencies and organizations authorized by acts or regulations are normally entering into contracts with individuals the construction of Which is difficult with the traditional administrative or civil contractual doctrines. As such, it is necessary to create a concept of ＂contracts under administrative private law＂ in the light of administrative private law （activity） theory. Such contracts, a fruit of combination of both public and private laws, are deemed to have special connotations and legal features. Since the ＂contracts under administrative private law＂ differ a lot from administrative contracts and private contracts, it is of significance to solve the special legal issues concerning them.