论行政合同的法律适用

作为一种新型的行政管理手段,行政合同是行政权扩张和现代公共行政兴起的结果。行政合同在性质上表现为行政性与契约性、公法性与私法性、行政性与民事性的结合,在法律适用上则表现为行政实体法与程序法、民事实体法与程序法的混合适用与选择适用。解决好行政合同的法律适用问题,既要遵循行政法、民法与合同法的一般原则,全面适用行政实体法与程序法,准确适用行政诉讼法,恰当援用民事实体法与程序法,也要采用类推方法适用法律,进而使行政合同案件得到公平、公正、合理的解决。

On Application of Law of Administrative Contract

As an administrative measure,administrative contract is a natural consequence from the expansion of the administrative power and the rise of the modern public administration.In terms of its character,administrative contract is both administrative and contractual,of both public law and private law,and both administrative and civil,while in terms of application of law,it is a mixed and selective use involving both substantive administrative law and procedural law,both civil substantive law and procedural law.To solve the problem of application of law of administrative contract,it is necessary to observe the general principles of administrative law,civil law and contract law,practice fully the substantive administrative law and procedural law,apply properly administrative procedural law and civil substantive law and procedural law.On the other hand,it is necessary to apply laws by analogy so as to resolve the cases of administrative contract fairly and rationally.