兰州市五泉房管所追缴公租金案的行政法分析

发布时间：2018-05-08 06:45

本文选题：公租房租赁合同 + 合同性质　；参考：《甘肃政法学院》2017年硕士论文

【摘要】：公租房是我国住房保障体系中一种较新的类型,因它对于解决我国中低收入家庭住房问题具有重大意义而受到社会的广泛关注,但目前关于公租房租赁合同的性质在立法及审判实践中均无权威性的认定,一旦涉及到公租房租赁合同纠纷,其解决途径的不确定性,势必会影响纠纷解决的效率及质量。所以,公租房租赁合同的性质以及其应该适用何种法律、通过哪些途径解决纠纷就显得非常重要。本文首先简述了兰州市五泉房管所与俞某公租房租赁合同纠纷一案的具体情况及判决结果,进而分析了案件焦点:包括公租房租赁合同纠纷按照民事纠纷审判的适当性和本案是否可以引入其它的纠纷解决途径,如非诉行政执行程序。本文第二部分从理论上对前文提出的案件相关焦点问题进行深入的法律分析。目前不管在理论界还是司法实践中,学者和法官们都对公租房租赁合同的性质没有统一的理解以及应用,有认为该类合同属于民事合同,如果发生纠纷应该按照民事纠纷去处置;另有认为该类合同属于行政合同,其纠纷自然适用行政处理方式。从法学理论角度来说,本文认为判断某种合同的性质,需要分析合同要件,包括其订立的法律依据、拟实现的合同目的、合同主体、合同内容等等。在本文中,经过具体分析本案中公租房租赁合同的要素以及行政行为在本案中的体现方式,本文最终将公租房租赁合同定性为行政合同。在合同性质确定的基础上,本文对公租房租赁合同纠纷进行进一步研究探讨,目的是推导出最适合解决此类纠纷的方式。本文第三部分在案例分析的基础上,更多纳入理论分析,从法律适用和实体处理方面阐述行政合同纠纷通过民事诉讼解决的各种限制,针对本案的公租房租金纠纷,本文进一步探讨相对应的纠纷解决途径,力图在法院民事判决之外,寻求一种更为有效的解决方式。本文第四部分引出了行政合同纠纷的其他解决途径,在民事审判存在种种限制的情形下,非诉行政强制执行成为一种新的选择,其通过对行政行为进行非实质审查提高了工作效率,减少了行政机关与当事人的接触面,可以更好的维护当事人的权益。但非诉行政强制执行也有其不完善的地方,如其形式审查虽然提高了效率,但对存在瑕疵的行政行为往往无法及时发现并纠正,不利于维护行政相对方的合法权益。非诉行政强制执行的不足,需要法律理论和实践的不断发展去完善和改进,这也正是本文所努力期待的。
[Abstract]:Public rental housing is a new type of housing security system in our country. However, the nature of public rental lease contract is not authoritative in legislation and trial practice. Once the dispute of public rental housing contract is involved, the uncertainty of its solution will inevitably affect the efficiency and quality of dispute resolution. Therefore, the nature of public rental lease contract and what kind of law should be applied, through which ways to resolve disputes is very important. At first, this paper briefly describes the case of the dispute between Wuquan House Management Office of Lanzhou City and Yu Mou in the lease contract case and the result of the judgment. Then it analyzes the focus of the case, including the appropriateness of the trial of the disputes in the lease contract of public rental housing according to the civil disputes and whether other dispute resolution approaches can be introduced in this case, such as the non-litigation administrative execution procedure. In the second part, the author makes a deep legal analysis of the case-related issues raised earlier. At present, no matter in theory or judicial practice, scholars and judges do not have a unified understanding and application of the nature of the public rental contract. Some believe that this kind of contract is a civil contract. If disputes should be dealt with in accordance with civil disputes, it is also believed that such contracts belong to administrative contracts, and their disputes are naturally applied to administrative processing. From the point of view of legal theory, this paper thinks that to judge the nature of a certain contract, we need to analyze the elements of the contract, including the legal basis for its conclusion, the purpose of the contract to be achieved, the subject of the contract, the content of the contract, and so on. In this paper, through the specific analysis of the elements of the public rental contract in this case and the administrative behavior in the embodiment of the case, this article will ultimately determine the public rental contract as an administrative contract. On the basis of the determination of the nature of the contract, this paper makes a further study on the dispute over the contract of public rental housing, with the aim of deducing the most suitable way to resolve the dispute. The third part of this paper, on the basis of case analysis, more into the theoretical analysis, from the application of law and substantive aspects of administrative contract disputes through civil litigation settlement of various restrictions, in view of the case of public rental rent dispute, This paper further discusses the corresponding ways of dispute resolution and tries to find a more effective solution in addition to the civil judgment of the court. The fourth part of this paper leads to other ways to solve disputes in administrative contracts. Under the situation of various limitations in civil trials, non-litigation administrative enforcement becomes a new choice. Through the non-substantive examination of the administrative act, it improves the working efficiency, reduces the contact between the administrative organ and the party concerned, and can better safeguard the rights and interests of the party concerned. However, non-litigation administrative enforcement has its imperfections, such as its form review has improved the efficiency, but the defective administrative behavior often can not be found and corrected in time, which is not conducive to the maintenance of the legitimate rights and interests of the administrative counterpart. The deficiency of non-litigation administrative enforcement needs the continuous development of legal theory and practice to perfect and improve, which is exactly what this article is looking forward to.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D920.5;D923.6;D925.3

【相似文献】