民事合同与行政合同的区分与关联

发布时间：2018-05-08 00:21

  本文选题：民事合同 + 行政合同　； 参考：《西南政法大学》2016年博士论文

【摘要】：民事合同与行政合同的关系问题在我国争论已久,但尚未形成一致认识。对此,民法学者和行政法学者存在很大分歧。民法学者主张限缩行政合同的范围甚或否定行政合同这一概念。而行政法学者则普遍承认行政合同,并将国有土地使用权出让合同、政府采购合同、政府科研合同、政府特许经营合同、农村土地承包经营合同等诸多合同类型纳入其中,呈现出泛化行政合同范围的倾向。新颁布实施的《行政诉讼法》及其司法解释首次将行政机关违反“政府特许经营协议、土地房屋征收补偿协议等协议”的纠纷纳入行政诉讼受案范围,却未明确行政合同的认定标准和具体类型,使得民事合同与行政合同的关系愈加扑朔迷离。完全否定行政合同的概念并不现实,而过于扩大行政合同的范围也难谓妥当,在承认行政合同概念的基础上厘清其与民事合同之区分与联系应属可取之道和当务之急。除引言和结语外,本文共五章:第一章,民事合同的演进及特征。法律意义上的合同源于古罗马。罗马法中的合同从债中独立而来,经历了从口头合同、文书合同、要物合同到诺成合同的发展阶段,并逐渐淡化了在形式和类型上的严格要求,“合意”要素逐渐凸显。可见,合同的最初形态是民事合同,行政合同并不具有独立的历史起源。此后,大陆法系国家在继受罗马法的基础上兼采教会法有关规定,形成了以合意为核心的合同概念。英美法系的合同从合同诉讼中发展而来,以允诺为其核心,但随着交易及约因理论不断受到挑战,合意说逐渐被采用。随着社会经济的变迁,以合意为核心的具有抽象性、现在化特征的古典合同因不能满足现实需要而逐渐走向衰落。现代的合同具有多元的哲学基础,以合意、习惯、诚实信用原则以及法律规定为义务来源,追求双方的合作共赢,强调合同的灵活性与社会性,并且越来越多地受到公法规制。现代合同的这些典型特征,对于科学认识民事合同与行政合同的关系具有重要意义。新中国成立以来,我国的民事合同制度经历了起步和停顿期、恢复和发展期以及成熟和完善期三个阶段,合同也逐步由计划手段发展成为为自治工具。这一发展过程所凸显的“政府退却,市场回归”的理念在处理民事合同与行政合同具体关系时应当继续坚持。我国民法中的合同亦采合意说,《民法通则》第85条将合同限定在债权合同,《合同法》第2条虽可作广义解释但仍以债权合同为主要对象。未来民法典中的合同应采广义概念,可界定为“当事人间设立、变更、消灭民事权利义务关系的协议”。第二章,行政合同的兴起与发展。行政合同的兴起以国家职能的转型(福利国家、合作国家的兴起)、行政范式的变迁(从秩序行政、管理行政、集权行政、单方行政到给付行政、服务行政、民主行政、合作行政)以及公法与私法的划分为背景。英美法系国家没有严格的公法与私法之区分,不存在独立的行政合同概念,而大陆法系各国行政合同的发展状况也存在差异。其中,法德两国的行政合同制度最具代表意义。法国的行政合同主要存在于公共服务领域,这与其以公共服务为核心的公法理念、二元的司法体系以及以判例为主的行政法生成机制密切相关。德国以行政权为核心构建其公法体系,将行政合同限定在公权力行政领域,行政机关适用私法所从事的私经济行为则属于私法范畴。我国行政法也是围绕行政权力而展开的,德国的行政合同制度应更具借鉴意义。在行政合同的概念上,不应将行政机关之间签订的合同排除在外,也不应将合同目的(行政管理或公共利益)作为概念的构成因素,应借鉴德国和我国台湾地区将其定义为:“行政机关与自然人、法人、其他组织之间,或者行政机关之间,设立、变更、终止行政法权利义务关系的协议”。此种界定既可以和民事合同概念形成对应,也有助于二者的有效区分。第三章,民事合同与行政合同的区分标准。在区分标准上,最具典型意义的当属法国和德国。在法国,民事合同与行政合同的区分通常依据法律规定和司法判例两项标准。司法判例标准包括合同至少一方须为公法人,合同内容与公共服务有关或包含私法之外的条款两项条件。现在,法国的司法判例标准因受到批判而较少应用,法定标准逐渐发挥主要作用。在德国和我国台湾地区,合同标的标准为理论通说,同时也形成了合同目的、合同主体、主体意思、复合标准等多种学说。在合同标的说内部,也存在规范事实说、规范拟制说、特别法说、保留说、行政任务说、前定秩序说等不同观点。法国所确定的司法判例标准不具有适用性,而且其自身也面临改变,不应作为我国的借鉴对象。我国学者所主张的合同目的和行政优益权均不适合作为区分标准。合同目的(无论是行政管理目的还是公共利益目的)属于不确定概念,容易不当扩大行政合同的范围,而且合同目的应结合合同具体内容进行考察,不应与合同动机混为一谈。行政优益权标准过于强调行政机关的行政特权,这既不符合行政合同的发展趋势,也不符合我国简政放权的改革方略,还不利于合同相对方的权益保护,应予以舍弃。我国应以合同标的为区分标准,当合同内容涉及行政机关的权力、职责或公民公法上权利、义务时,便为行政合同。行政机关在公权力行政过程中所签合同属于行政合同,而私经济行政过程中的合同则为民事合同。学者们在民事合同与行政合同之外提出的经济合同和行政私法合同在概念上不能成立,所谓的经济合同或行政私法合同本质上仍为民事合同,故仍应以合同标的为区分标准坚持民事合同与行政合同的二元区分。第四章,区分论下行政合同的应用范围。由于区分标准不同,各个国家和地区行政合同的应用范围存在差异,即便在同一立法例内部,就一些合同的定性也存在争议。我国新《行政诉讼法》虽然将行政机关违反政府特许经营协议和土地房屋征收补偿协议等协议的纠纷纳入行政诉讼,但并未明确行政合同的具体范围,而各地方政府规章及行政法理论研究却有扩大行政合同应用范围的倾向。以合同标的为区分标准,行政合同应仅限于公权力行政领域,行政机关在私经济行政过程中从事的交易性合同应为民事合同。征收补偿协议、计划生育合同、公务员聘任合同、行政委托合同、行政担保合同以及行政和解合同等属于行政合同。政府采购合同、国有土地使用权出让合同、政府特许经营合同、农村土地承包合同、全民所有制工业企业承包(租赁)合同、政府科研合同、政策信贷合同以及教师聘用合同等私经济行政中的合同类型在合同内容上既不涉及行政机关的权力、职责,也与公民公法上的权利、义务无关,应属于民事合同。在分析私经济行政中合同的性质时,可借鉴双阶理论将前阶段的行政处分与后阶段的合同区分开来,同时也应将合同与行政机关的法定职权区分开来。对于合同和与其相关联的行政行为,应分别适用民事和行政救济路径。至于可能造成法院间矛盾裁判的问题,可借鉴德国和我国台湾地区关于先决问题的解决方案,还可探索建立民事附带行政诉讼模式。将私经济行政中的合同纳入民事合同,在保持法律的连续性和稳定性,维持行政合同内部体系的协调,维护民商事领域法律适用的统一性、落实国家民事主体地位、促进国际贸易发展以及保护当事人合法权益等方面均具有重要意义。第五章,民事合同与行政合同的关联。在强调行政合同与民事合同的区分,关注其行政性的同时,也应重视其与民事合同的共性,凸显其合同性。民事合同与行政合同在平等、意思自治、诚实信用以及合同神圣原则上存在共通性。行政合同中双方当事人并非单纯的命令与服从关系,而是公法上的权利义务关系,应遵循平等原则。行政合同平等原则的内涵不应仅限于行政机关对相对人的平等对待,还应包括行政机关与相对人之间的平等,即合同双方主体资格平等、法律地位平等、权利义务平等以及平等受法律保护。行政自由裁量权为行政合同自由提供了合法依据和存在空间。但行政合同约定的事实认定标准不得低于法定标准,约定的权利义务不得超过行政机关的法定职权,而且行政合同的约定应对行政机关的自由裁量权构成限制。以行政法规范的性质及破坏国家统制力为由否定行政法适用诚实信用原则不足为取,行政合同双方当事人应诚实、守信、善意,追求利益平衡。此外,行政合同还应遵守合同神圣原则,增加对行政合同的认可与尊重。行政合同应主要适用行政法,但当行政法规范存在漏洞,民法规范存在类似规定,且不违反行政法基本原则的情况下,应允许对民事合同规则的类推适用。民事合同基本原则、合同订立规则、合同效力规则、合同履行规则、合同终止规则、合同责任规则、合同解释规则以及民事特别法规则等均有类推适用的空间。我国行政合同的救济制度尚存在缺陷,可借鉴民事合同救济机制予以完善。在非诉救济方面,应注重协商、仲裁功能的发挥,认识到行政复议在解决行政合同纠纷上存在的缺陷,不应将行政优益权作为行政合同纠纷的解决手段。在司法救济上,应从起诉主体、受案范围、诉讼管辖、举证责任、审理方式以及判决形式等方面建立起双向的救济机制。我国应以合同标的建立起民事合同与行政合同的楚河汉界,将行政合同限定在公权力行政领域。只有这样,才能将民事合同与行政合同真正区分开来,才与世界经济及法律全球化以及我国简政放权的趋势相符。我国未来民法典没有必要专章规定政府合同或行政合同,就行政机关在私经济过程中签订的各类合同可通过单行立法进行规范。随着民事合同的日益普遍以及行政合同的大量兴起,我国正在进入合同社会。在强调民事合同与行政合同的性质划分以及公私法规制的同时,还应强调当事人缔约能力的提高以及契约精神的养成。
[Abstract]:The relationship between civil contract and administrative contract has been debated in our country for a long time, but it has not yet formed a consensus. There are great differences between civil law scholars and administrative law scholars. Civil law scholars claim to limit the scope of administrative contracts or even deny the concept of administrative contract. With the right to sell the contract, the government procurement contract, the government scientific research contract, the government franchise contract, the rural land contract management contract and many other types of contract into it, present the tendency of generalization of the scope of the administrative contract. The dispute on the compensation agreement of land housing expropriation is included in the scope of administrative litigation, but it is not clear about the standard and specific type of the administrative contract, which makes the relationship between the civil contract and the administrative contract more and more complicated. It is not realistic to completely deny the concept of administrative contract, and it is difficult to enlarge the scope of the administrative contract too. On the basis of acknowledgment of the concept of administrative contract, it is advisable and urgent to clarify the distinction and connection between the civil contract and the civil contract. In addition to the introduction and conclusion, this article consists of five chapters: Chapter 1, the evolution and characteristics of the civil contract. The contract in the legal sense originates from the ancient Rome. The Rome law is independent from the debt, and has gone through the oral contract, The document contract requires the contract to the development stage of the contract, and gradually desalination of the strict requirements on the form and type. The "consensual" elements are gradually highlighted. It can be seen that the original form of the contract is a civil contract and the administrative contract does not have an independent historical origin. After that, the countries of the large land law system have concurrently adopted the church on the basis of the Rome law. According to the relevant provisions of the law, the concept of contract is formed at the core of the agreement. The contract of the Anglo American law system is developed from the contract litigation, and it is the core of the contract. But with the continuous challenge of the transaction and the challenge theory, the contract is gradually adopted. With the social and economic changes, the classical combination with the abstract and present characteristics is the core. A modern contract has a multiple philosophical basis, which is based on consensus, habit, honesty and credit and legal provisions, pursuing mutual cooperation and mutual benefit, emphasizing the flexibility and sociality of the contract, and more and more regulated by public law. These typical special features of modern contracts. Since the founding of new China, the civil contract system of China has gone through the beginning and pause period, the period of recovery and development, and the three stages of maturity and perfection. The contract also gradually developed from the planned means into an autonomous tool. The concept of "government retreat, market return" should continue to persist when dealing with the specific relationship between civil contract and administrative contract. The contract in civil law of our country also agrees that the eighty-fifth articles of the general law of the civil law restrict the contract to the contract of creditor's rights, and the second articles of the contract law can be interpreted in a broad sense but still take the creditor's right contract as the main object. The contract should be defined as the general concept, which can be defined as "the agreement between the establishment, alteration and elimination of civil rights and obligations between the parties". Chapter second, the rise and development of administrative contracts. The rise of administrative contracts with the transition of the state function (the welfare state, the rise of the cooperative state), the change of the political paradigm (from order administration, administration administration, centralized administration, Single administrative to payment administration, service administration, democratic administration, cooperative administration, and the division of public law and private law. There is no distinction between public law and private law in Anglo American law countries, there is no independent concept of administrative contract, and there are differences in the development of administrative contracts in civil law countries. Among them, the administrative cooperation between France and Germany The same system is of the most representative significance. The administrative contract of France mainly exists in the field of public service, which is closely related to the public law concept at the core of public service, the two yuan judicial system and the formation mechanism of the administrative law based on case precedent. In the field, the private economic behavior that the administrative organ applies to private law belongs to the private law category. The administrative law of our country is also carried out around the administrative power, and the administrative contract system of Germany should be more useful for reference. In the concept of administrative contract, it should not exclude the agreement between the administrative organs and the purpose of the contract (administrative management). As a component of the concept, it should be defined as the agreement between Germany and the Taiwan region of our country as: "the agreement between the administrative organs and natural persons, legal persons, other organizations, or between the administrative organs to establish, change, and terminate the rights and obligations of administrative law". This definition can not only correspond to the concept of civil contract, but also have a corresponding relationship with the concept of civil contract. The distinction between the two, the third chapter, the standard of distinction between civil contract and administrative contract. In the distinction standard, the most typical is France and Germany. In France, the distinction between civil contract and administrative contract is usually based on the two standards of legal provisions and judicial precedents. The standard of judicial precedent includes at least one party of the contract as a public legal person, The content of the contract is related to the two conditions of the public service or the provisions other than the private law. Now, the standard of the French judicial precedent is less applied because it is criticized. The legal standard gradually plays a major role. In Germany and the Taiwan area of China, the standard of the contract mark is the theory of the contract, and the contract object, the contract subject and the main meaning are also formed in the same time. There are various theories, such as the compound standard, and so on. In the contract standard, there is also the standard fact theory, the standard theory, the special law, the theory of the reservation, the theory of the administrative task and the order of the former order. The standard of judicial precedent is not applicable in France, and it is also faced with the change in itself. It should not be used as a reference for our country. Chinese scholars The purpose of the contract and the right of administrative benefit are not suitable for the distinction standard. The purpose of the contract (whether it is the purpose of administration or the purpose of public interest) is an uncertain concept, and it is easy to expand the scope of the administrative contract, and the purpose of the contract should be inspected with the specific content of the contract. It should not be confused with the contract motivation. The standard of preferential rights overemphasizes the administrative privileges of the administrative organs, which neither conforms to the development trend of the administrative contract nor is in line with the reform strategy of our country's simplified government and release, and is not conducive to the protection of the rights and interests of the other party, and should be abandoned. The rights and obligations of the public law are administrative contracts. The contracts signed by the administrative organs in the public power administrative process belong to the administrative contract, while the contract in the private economic administrative process is a civil contract. The economic contract and the private law contract put forward by the scholars in the civil contract and the administrative contract can not be established in concept. The contract or administrative private law contract is still a civil contract in essence, so it should still adhere to the distinction between the civil contract and the administrative contract by the standard of the contract. The fourth chapter distinguishes the application scope of the administrative contract under the distinction. The application scope of the administrative contracts in various countries and regions is different, even in the same way, because of the difference of standards. Within the legislations, there are disputes about the nature of some contracts. Although the new administrative procedure law of China has brought the administrative organs into administrative proceedings in violation of the agreements such as the government concession agreement and the compensation agreement of land housing expropriation, it does not clarify the specific scope of the administrative contract, but the local government regulations and the administrative law theory study There is a tendency to expand the scope of the application of administrative contracts. The administrative contract should be limited to the standard of the contract. The administrative contract should be limited to the administrative field of public power. The transaction contract that the administrative organ engaged in the private economy administrative process should be a civil contract. The compensation agreement, the family planning contract, the appointment contract of the public servants, the administrative entrustment contract, the administrative guarantee contract And the administrative contract, the contract of government procurement, the contract for the transfer of the right to use the state land, the contract of the government franchise, the contract for the rural land, the contract for the industrial enterprise of the whole people, the government research contract, the contract of the policy and the contract of the employment of the teacher, and the contract type of the contract in the private economy. In the content of the contract, it does not involve the authority of the administrative organs, duties, and the rights and obligations of the civil law. It should be a civil contract. In the analysis of the nature of the contract in private economic administration, we can draw lessons from the two order theory to distinguish the previous stage of administrative punishment from the later stage of the contract, and at the same time, it should also make the contract and the statutory duty of the administrative organ. The civil and administrative relief paths should be applied separately to the contract and the administrative act associated with it. As for the problems that may cause the conflicting judges between the courts, we can draw on the solutions of the first questions in Germany and the Taiwan region of our country and explore the establishment of a civil incidental administrative litigation model. The inclusion of a contract in a civil contract is of great significance in maintaining the continuity and stability of the law, maintaining the coordination of the internal system of the administrative contract, maintaining the unity of the legal application of the civil and commercial fields, implementing the status of the civil subject of the state, promoting the development of the international trade and protecting the legitimate rights and interests of the parties. The fifth chapter, the civil contract and the line The relationship between the administrative contract and the administrative contract, while emphasizing the distinction between the administrative contract and the civil contract, and paying attention to its administrative nature, should also attach importance to the commonality of the contract with the civil contract and highlight its contractual nature. The civil contract and the administrative contract are common in equality, autonomy, honesty and credit and the sacred principle of the contract. The parties in the administrative contract are not simple. The connotations of the principle of equality of administrative contract should not only be restricted to the equal treatment of the relative persons by the administrative organs, but also include the equality between the administrative organs and the relative persons, that is, the equality of the main body of the two parties, the equal legal status, and the equal rights and obligations. And equality is protected by law. Administrative discretion provides the legal basis and space for the freedom of administrative contract. However, the standard of fact determination stipulated in the administrative contract must not be lower than the legal standard. The contractual rights and obligations must not exceed the statutory authority of the administrative organ, and the agreement of administrative contract should be made by the administrative authority. In addition, the parties to administrative contracts should be honest, trustworthy, good faith, and pursue a balance of interests. In addition, the administrative contract should also abide by the sacred principle of the contract, add the recognition and respect to the administrative contract. The administrative contract shall be the owner. In order to apply the administrative law, when there are loopholes in the administrative law, there are similar regulations in the code of civil law and do not violate the basic principles of the administrative law, it should be allowed to apply the analogy to the rules of civil contract. The basic principles of the civil contract, the rules of contract formation, the rules of the validity of the contract, the rules of the performance of the contract, the termination rules of the contract, the rules of the contract liability, and the rules of contract liability. There is a space of analogy with the rules of interpretation and the rules of civil special law. There are still defects in the remedy system of administrative contract in our country. We can draw lessons from the remedy mechanism of civil contract. In non litigation relief, we should pay attention to consultation, play the function of arbitration and recognize the defects of administrative reconsideration in solving administrative contract disputes. In judicial relief, we should establish a two-way relief mechanism from the subject of prosecution, the scope of the case, the jurisdiction of the lawsuit, the burden of proof, the way of hearing and the form of judgment. We should establish the contract of contract and the administrative contract of Chu River in the Han Dynasty and the administrative contract. Only in this way can civil contracts and administrative contracts be truly distinguished from those of the world economy and law.

【学位授予单位】：西南政法大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D923.6;D925.3
，

本文编号：1859123