行政合同履行中“情势变更”的适用及其规则
发布时间：2018-08-09 19:30
【摘要】：人民法院审理行政合同案件时,可适用不违反行政法强制性规定的民事法律规范。民法领域中"情势变更"的规定可为行政合同案件所适用。行政合同是经双方当事人意思表示一致而成立的双务合同,理论上完全可能受到情势变更的影响。目前,在行政合同履行中对情势变更的处理,我国过分强调行政机关的单方优益权和对公共利益的维护,忽视了相对人合法权益的保障,这不仅会降低相对人的缔约热情,还会影响到行政合同目的的实现。本文立足于我国情势变更的立法现状与实务状况,分析法国、德国和我国台湾地区等域外法规范,从比较法的视角,讨论行政合同履行中"情势变更"的适用及其规则,试图构建符合我国国情的行政合同中情势变更的处理模式。具体而言,本文的结构安排如下:第一部分是问题的提出。由"新增规划许可案"和"新发现文物案"两个案例,引出行政合同履行中适用情势变更需要解决的具体问题。第二部分是论证行政合同履行中适用"情势变更"的合理性与必要性,从"情势变更可适用于所有合同"和"行政合同中适用情势变更具有特殊性"展开。第三部分是行政合同中"情势变更"的构成要件,这是讨论情势变更处理规则的前提。民法领域中的"情势变更"不违背行政法上的强制性规定,故我国《合同法司法解释(二)》第26条关于情势变更的认定标准可为行政合同案件所准用。文中还借鉴域外法经验,归纳出我国行政合同履行中适用"情势变更"的构成要件。具体包括:情势发生重大变更、变更发生在合同履行过程中、不可预见、不可归责以及继续履行会导致合同显失公平或目的落空。情势变更的构成要件使"情势变更"与"不可抗力"、"商业风险"、"显失公平"等法律概念相区别。第四部分是适用情势变更的主体及其主要规则。首先分析了在我国行政合同履行中,合同双方当事人均享有主张适用情势变更原则的权利。其次,讨论了发生情势变更后,行政合同双方当事人针对合同履行问题所采取的两种主要处理方式:协商变更与单方变更,其中包括二者的关系以及各自的适用条件。再次,从比较法视角,讨论法国、台湾与德国立法例的特点,并根据我国立法、司法现状,试图构建符合我国国情的行政合同履行中情势变更的处理模式。第四部分是结语,对第一部分所提案件进行重新审视,以检验上述模式的合理性,并对全文内容与核心观点进行总结。
[Abstract]:When the people's court tries the case of administrative contract, it may apply the civil law norm which does not violate the compulsory stipulation of administrative law. The "change of circumstances" in the field of civil law can be applied in administrative contract cases. Administrative contract is a double-service contract established by the agreement of intention of both parties, which may be affected by the change of situation in theory. At present, in the process of handling the situation change in the performance of administrative contract, our country overemphasizes the unilateral superior right of the administrative organ and the protection of public interest, neglecting the protection of the legal rights and interests of the relative party, which will not only reduce the relative party's enthusiasm for concluding the contract. It will also affect the realization of the purpose of the administrative contract. Based on the current legislative and practical situation of the situation change in our country, this paper analyzes the norms of foreign laws such as France, Germany and Taiwan, and discusses the application and rules of "change of circumstances" in the performance of administrative contract from the perspective of comparative law. This paper tries to construct the mode of dealing with the situation change in the administrative contract in accordance with the national conditions of our country. Specifically, the structure of this paper is as follows: the first part is the question. From the two cases of "new planning permission case" and "newly discovered cultural relic case", the concrete problems that need to be solved in the application of situation change in the performance of administrative contract are introduced. The second part is to demonstrate the rationality and necessity of the application of "change of circumstances" in the performance of administrative contract, starting from "the change of circumstances can be applied to all contracts" and "the application of situation change in administrative contract has particularity". The third part is the constituent elements of the change of circumstances in the administrative contract, which is the premise of discussing the rules of dealing with the change of circumstances. The "change of circumstances" in the field of civil law does not violate the mandatory provisions of administrative law, so the criterion of the determination of the change of circumstances in Article 26 of the contract Law of China can be applied to the case of administrative contract. The article also draws lessons from the experience of the extraterritorial law, and sums up the constitutive elements of the application of "change of circumstances" in the performance of administrative contract in our country. Specific include: the situation has significant changes, the change occurred in the process of contract performance, unpredictable, unaccountable and continue to perform will lead to unfair contract or the purpose of failure. The constitutive elements of the change of circumstances distinguish the legal concepts of "change of circumstances" from "force majeure", "commercial risk" and "manifestly unfair". The fourth part is the subject of the change of circumstances and its main rules. Firstly, the author analyzes that both parties to the contract have the right to apply the principle of change of circumstances in the performance of administrative contract in our country. Secondly, the paper discusses two main ways to deal with the problem of contract performance: negotiation change and unilateral change, including the relationship between the two parties and their respective applicable conditions. Thirdly, from the perspective of comparative law, this paper discusses the characteristics of the legislative cases of France, Taiwan and Germany, and tries to construct the mode of dealing with the situation change in the performance of administrative contract according to the current situation of legislation and judicature in our country. The fourth part is the conclusion, the first part of the case to re-examine to test the rationality of the model, and to summarize the content and core views.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
，
本文编号：2175090
[Abstract]:When the people's court tries the case of administrative contract, it may apply the civil law norm which does not violate the compulsory stipulation of administrative law. The "change of circumstances" in the field of civil law can be applied in administrative contract cases. Administrative contract is a double-service contract established by the agreement of intention of both parties, which may be affected by the change of situation in theory. At present, in the process of handling the situation change in the performance of administrative contract, our country overemphasizes the unilateral superior right of the administrative organ and the protection of public interest, neglecting the protection of the legal rights and interests of the relative party, which will not only reduce the relative party's enthusiasm for concluding the contract. It will also affect the realization of the purpose of the administrative contract. Based on the current legislative and practical situation of the situation change in our country, this paper analyzes the norms of foreign laws such as France, Germany and Taiwan, and discusses the application and rules of "change of circumstances" in the performance of administrative contract from the perspective of comparative law. This paper tries to construct the mode of dealing with the situation change in the administrative contract in accordance with the national conditions of our country. Specifically, the structure of this paper is as follows: the first part is the question. From the two cases of "new planning permission case" and "newly discovered cultural relic case", the concrete problems that need to be solved in the application of situation change in the performance of administrative contract are introduced. The second part is to demonstrate the rationality and necessity of the application of "change of circumstances" in the performance of administrative contract, starting from "the change of circumstances can be applied to all contracts" and "the application of situation change in administrative contract has particularity". The third part is the constituent elements of the change of circumstances in the administrative contract, which is the premise of discussing the rules of dealing with the change of circumstances. The "change of circumstances" in the field of civil law does not violate the mandatory provisions of administrative law, so the criterion of the determination of the change of circumstances in Article 26 of the contract Law of China can be applied to the case of administrative contract. The article also draws lessons from the experience of the extraterritorial law, and sums up the constitutive elements of the application of "change of circumstances" in the performance of administrative contract in our country. Specific include: the situation has significant changes, the change occurred in the process of contract performance, unpredictable, unaccountable and continue to perform will lead to unfair contract or the purpose of failure. The constitutive elements of the change of circumstances distinguish the legal concepts of "change of circumstances" from "force majeure", "commercial risk" and "manifestly unfair". The fourth part is the subject of the change of circumstances and its main rules. Firstly, the author analyzes that both parties to the contract have the right to apply the principle of change of circumstances in the performance of administrative contract in our country. Secondly, the paper discusses two main ways to deal with the problem of contract performance: negotiation change and unilateral change, including the relationship between the two parties and their respective applicable conditions. Thirdly, from the perspective of comparative law, this paper discusses the characteristics of the legislative cases of France, Taiwan and Germany, and tries to construct the mode of dealing with the situation change in the performance of administrative contract according to the current situation of legislation and judicature in our country. The fourth part is the conclusion, the first part of the case to re-examine to test the rationality of the model, and to summarize the content and core views.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
，
本文编号：2175090
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