| Summary: | 碩士 === 國立中山大學 === 中山學術研究所 === 96 === Abstract
The law theory of administration contract is from France at first, and then it was carried forward by German. The administration practical surroundings in Taiwan also accept the theory aspect of administration contract. When we do research on the topic, we should understand what it could be made for, and which problems in administration it could solve. So it is necessary to have a unanimously understanding view on administration contract in France and German before we try to understand the difference between administration from private contract and, building our own administration contract legal theory.
After understanding the development situation of administration contract the following question is how we can tell the administration contract from private contract, for the answer, we should know the standards which help us understand what the administration contract is. The article thinks all of those standards which scholars build are all characters of it. These standards are made from administration contracts’ peculiarities. So we can say every standard is equal to the definition of administration contract, but one thing we admitted is it is impossible to give administration contract a perfect definition. So we can not give up use the standards to definite administration contract and accept all the context of all the standards at the same time. When a government set a contract with citizens, the contracts almost are public, we could call them administration contract all the time, but there are still some special exceptions, for example, a government set a trade contract for the government’s own good to support the administration process, the article thinks the kind of contract is not for public goods for people. We just call it private contract.
When the government’s duties get more and more complex, we could not imagine all administration duties de done by their own. So the administration law theory develops the aspect called administration contract providing a way to deal with the problems when modern national character’s changing. So administration contract was born. Public construction contract is used to provide a construction which be made for public goods. Originally government should coordinate the demanded to design public construction, but as we said before, governments set a contract with building company to help government finish public duty. The article has a totally different opinion from that of mainstream: the public construction contract is a administration contract, and let go step further thinking, if we regards public construction contract as administration contract. The power of government will be legally limited and controlled by the public administration law designed to prevent public good.
Anyway, administration law is the spiritual prop for the administration practice, now some people said our nation’s purchasing process is not clean, if we could let the processed be inspected. The article thinks the problem will gain improvement. That is the gall and value it exists.
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