Legal analysis on the types of judament concerning administrative contract

• Main Authors: Ming-Lun Guo, 郭銘倫
• Other Authors: Ying-Chin Chen
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/864f42

碩士 === 中原大學 === 財經法律研究所 === 103 === Abstract The Administrative Procedure Act has entered into force in January 1, 2001, and since then, the administrative contract is recognized as part of important administrative procedure. Throughout the implementation of the act, judicial practices have developed cases regarding various types of administrative contracts. Conducting inductive analysis on the cases and by categorizing the cases should be constructive towards the re-construction of the legal structure of the administrative contracts, which is also the aim of this Thesis. However, as a prerequisite to apply relevant provisions of administrative contract, the character of the administrative contract within the contract has to be confirmed in advance. This Thesis discussed this problem in Chapter 3, and clarified the method to differentiate between administrative contract and private contract. In sum, this Thesis submitted that the test applied ought to be primarily based on the subject-matter of the contract, and secondarily, by examining the actors. However, in the future along with the development, it is recommended to wholly adopt the test of actors. Also, this Thesis concluded in this chapter the test adopted by judicial practices when facing this problem. Regarding the categories of the administrative contracts, scholars generally categorizes these contracts into six types, namely the co-ordinate contract and subordinate contract, ehe burden of contract and disposal contract, and last but not least, compromise contract and reciprocal contract. However, this categorization is roughly made based on the format and the character of the administrative contract, which is less certain and concrete if compared to the types of contracts included in the Civil Code. In judicial practices, this categorization is also less meaningful. This Thesis therefore aimed to inductively analyze and conclude the categories of administrative contracts based on administrative court judgments, and presented the conclusion in Table 1. There are two purposes of making this categorization: firstly, to form consensus on the categorization in order to avoid conflicts; secondly, as different types of administrative contracts require different governing norms, these norms can be written into specific provisions aside from general provisions, similar to the Civil Code. By doing so, it is expected that conflicts can be avoided, and parties could make better prediction regarding the rights, obligations and burdens before entering into contract, and abolish the feeling of uncertainty.