论行政合同的法律救济

On Legal Remedy of Administrative Contract

行政合同具有行政性和契约性的双重特性,其本质是行政权力与契约精神的互动适应。行政合同的行政性决定行政合同救济应主要适用行政法上的救济方式,行政合同的契约性决定行政合同救济应部分适用私法原则。我国现行的行政救济制度是针对具体行政行为建立起来的单向性救济方式,与行政合同的双向性构造相矛盾。因此,有必要对我国现行的行政救济制度进行反思与重构,建立适应行政合同特点的双向性救济方式。

Administrative contract is executive as well as contractual. In essence, it is the mutual adaptation between administrative power and contractual spirit. Its executive feature determines its remedy in administrative law as its main legal remedy. And its contractual feature makes the remedy partially applicable to private law. The current administrative remedy in China is the unidirectional one which is based on specific administrative action and is contradictory with the bidirectional admin- istrative contract. Accordingly, we need to rethink about our legal remedy and reconstruct it in an attempt to establish the bidi- rectional remedy which is adapted to the features of administrative contract.