| Summary: | 碩士 === 銘傳大學 === 法律學系碩士班 === 104 === This thesis focuses on the Change of Circumstances in the fulfillment of administrative contracts, analyzing the relevant legal regulations in the main countries of Common Law and Civil Law Systems by comparison, combining with the current theoretical study and judicial practice, and constructing the Doctrine of Circumstances Change in the Chinese Mainland’s administrative contracts performance, aiming at offering a reference to the discretion of judicial practices of the Chinese Mainland.
The first chapter is the introduction to the definition and development of “clausula rebus sic stantibus”, and the types and judgment standards of “Change of Circumstances” in generalized sense. Based on the common law system, the impracticability of contract is discussed mainly in this work, while the impossibility is involved. It should be noted that the administrative contract here is restricted to the unequal contract between the administration and the private. As the civil legal norms are applicable to the disputes in the administrative contract conditionally, so the identification of Circumstances Change in private contracts is also investigated.
The second chapter discusses the Doctrine of Circumstances Change of the two legal systems’ main countries in detail. In England, the Doctrine of Frustration is presented with two situations of impossibility and frustration of purpose，the theories of the system are introduced and then rules of special laws fitted to the contracts of British government and prerogative sources of administrations are discussed. For the Civil Law, including the legal norms of France, Germany and Taiwan, the concept and judgement of the administrative contracts are brought in to make comparison between the public and private laws. Then the related systems and rules of public and private laws are detailed. In Germany, for example, the System of Foundation of Legal Transaction and the traditional Change of Circumstance in the administrative contracts. And Germany contracting authorities hold only limited prerogatives, even though the administrative contracts pay attention to the public interests. As for private law of France, the concept of “force majeure” is introduced and the conservative attitude towards impracticability is maintained; “la théorie de l’imprévision”, “la théorie du fait du prince ou fait de l’administration” and the right of unilateral adjustment are focuses, granting the administrations universal prerogatives including the right of unilateral modification and unilateral cancellation and continuity of service, meanwhile the compensation corresponding to the loss due to the exercise of this prerogative is rendered to the personal by adopting the Principle of Financial Equilibrium. In Taiwan the fulfillment obstacles of the administrative contract in the Administrative Procedure Act is referred to the relevant rules of French law, articles 145 to 147 correspond to the aforementioned three theories of French law respectively.
The third one is the current status of Change of Circumstance in the Chinese Mainland, and the system design according the comparative method. Although direct regulations in the civil and administrative laws are insufficiency for the change of circumstance in the Mainland, it does not imply that there are no any statements in judicial interpretations or local-legislation rules. From the theories and experiences in justice and legislation, it is revealed that the Mainland’s law refers to the prerogatives of the administrative law in France, which privilege the administration. However, making the French law as a reference, the Mainland also need to turn to advantages containing strict rules for fulfillment obstacles in England, system of equal consultation in Germany, and imitating experiences of law transplantation in Taiwan. Article 12, section 1(11) in the Administrative Procedure Law which implemented on May 1, 2015 in the Mainland absorbs the administrative contract into the case-accepting range of police administrative litigation. This law promotes effectively the solving of disputes in the fulfillment of the administrative contract. The government licensed management contract is listed and expounded in the thesis.
Finally, there is a conclusion to demonstrate main contents and viewpoints concisely.
|
|---|
