行政合同履行中“情勢變更”的適用及其規(guī)則
發(fā)布時間：2018-08-09 19:30
【摘要】：人民法院審理行政合同案件時,可適用不違反行政法強(qiáng)制性規(guī)定的民事法律規(guī)范。民法領(lǐng)域中"情勢變更"的規(guī)定可為行政合同案件所適用。行政合同是經(jīng)雙方當(dāng)事人意思表示一致而成立的雙務(wù)合同,理論上完全可能受到情勢變更的影響。目前,在行政合同履行中對情勢變更的處理,我國過分強(qiáng)調(diào)行政機(jī)關(guān)的單方優(yōu)益權(quán)和對公共利益的維護(hù),忽視了相對人合法權(quán)益的保障,這不僅會降低相對人的締約熱情,還會影響到行政合同目的的實現(xiàn)。本文立足于我國情勢變更的立法現(xiàn)狀與實務(wù)狀況,分析法國、德國和我國臺灣地區(qū)等域外法規(guī)范,從比較法的視角,討論行政合同履行中"情勢變更"的適用及其規(guī)則,試圖構(gòu)建符合我國國情的行政合同中情勢變更的處理模式。具體而言,本文的結(jié)構(gòu)安排如下:第一部分是問題的提出。由"新增規(guī)劃許可案"和"新發(fā)現(xiàn)文物案"兩個案例,引出行政合同履行中適用情勢變更需要解決的具體問題。第二部分是論證行政合同履行中適用"情勢變更"的合理性與必要性,從"情勢變更可適用于所有合同"和"行政合同中適用情勢變更具有特殊性"展開。第三部分是行政合同中"情勢變更"的構(gòu)成要件,這是討論情勢變更處理規(guī)則的前提。民法領(lǐng)域中的"情勢變更"不違背行政法上的強(qiáng)制性規(guī)定,故我國《合同法司法解釋(二)》第26條關(guān)于情勢變更的認(rèn)定標(biāo)準(zhǔn)可為行政合同案件所準(zhǔn)用。文中還借鑒域外法經(jīng)驗,歸納出我國行政合同履行中適用"情勢變更"的構(gòu)成要件。具體包括:情勢發(fā)生重大變更、變更發(fā)生在合同履行過程中、不可預(yù)見、不可歸責(zé)以及繼續(xù)履行會導(dǎo)致合同顯失公平或目的落空。情勢變更的構(gòu)成要件使"情勢變更"與"不可抗力"、"商業(yè)風(fēng)險"、"顯失公平"等法律概念相區(qū)別。第四部分是適用情勢變更的主體及其主要規(guī)則。首先分析了在我國行政合同履行中,合同雙方當(dāng)事人均享有主張適用情勢變更原則的權(quán)利。其次,討論了發(fā)生情勢變更后,行政合同雙方當(dāng)事人針對合同履行問題所采取的兩種主要處理方式:協(xié)商變更與單方變更,其中包括二者的關(guān)系以及各自的適用條件。再次,從比較法視角,討論法國、臺灣與德國立法例的特點,并根據(jù)我國立法、司法現(xiàn)狀,試圖構(gòu)建符合我國國情的行政合同履行中情勢變更的處理模式。第四部分是結(jié)語,對第一部分所提案件進(jìn)行重新審視,以檢驗上述模式的合理性,并對全文內(nèi)容與核心觀點進(jìn)行總結(jié)。
[Abstract]:When the people's court tries the case of administrative contract, it may apply the civil law norm which does not violate the compulsory stipulation of administrative law. The "change of circumstances" in the field of civil law can be applied in administrative contract cases. Administrative contract is a double-service contract established by the agreement of intention of both parties, which may be affected by the change of situation in theory. At present, in the process of handling the situation change in the performance of administrative contract, our country overemphasizes the unilateral superior right of the administrative organ and the protection of public interest, neglecting the protection of the legal rights and interests of the relative party, which will not only reduce the relative party's enthusiasm for concluding the contract. It will also affect the realization of the purpose of the administrative contract. Based on the current legislative and practical situation of the situation change in our country, this paper analyzes the norms of foreign laws such as France, Germany and Taiwan, and discusses the application and rules of "change of circumstances" in the performance of administrative contract from the perspective of comparative law. This paper tries to construct the mode of dealing with the situation change in the administrative contract in accordance with the national conditions of our country. Specifically, the structure of this paper is as follows: the first part is the question. From the two cases of "new planning permission case" and "newly discovered cultural relic case", the concrete problems that need to be solved in the application of situation change in the performance of administrative contract are introduced. The second part is to demonstrate the rationality and necessity of the application of "change of circumstances" in the performance of administrative contract, starting from "the change of circumstances can be applied to all contracts" and "the application of situation change in administrative contract has particularity". The third part is the constituent elements of the change of circumstances in the administrative contract, which is the premise of discussing the rules of dealing with the change of circumstances. The "change of circumstances" in the field of civil law does not violate the mandatory provisions of administrative law, so the criterion of the determination of the change of circumstances in Article 26 of the contract Law of China can be applied to the case of administrative contract. The article also draws lessons from the experience of the extraterritorial law, and sums up the constitutive elements of the application of "change of circumstances" in the performance of administrative contract in our country. Specific include: the situation has significant changes, the change occurred in the process of contract performance, unpredictable, unaccountable and continue to perform will lead to unfair contract or the purpose of failure. The constitutive elements of the change of circumstances distinguish the legal concepts of "change of circumstances" from "force majeure", "commercial risk" and "manifestly unfair". The fourth part is the subject of the change of circumstances and its main rules. Firstly, the author analyzes that both parties to the contract have the right to apply the principle of change of circumstances in the performance of administrative contract in our country. Secondly, the paper discusses two main ways to deal with the problem of contract performance: negotiation change and unilateral change, including the relationship between the two parties and their respective applicable conditions. Thirdly, from the perspective of comparative law, this paper discusses the characteristics of the legislative cases of France, Taiwan and Germany, and tries to construct the mode of dealing with the situation change in the performance of administrative contract according to the current situation of legislation and judicature in our country. The fourth part is the conclusion, the first part of the case to re-examine to test the rationality of the model, and to summarize the content and core views.
【學(xué)位授予單位】：南京大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D923.6
，
本文編號：2175090
[Abstract]:When the people's court tries the case of administrative contract, it may apply the civil law norm which does not violate the compulsory stipulation of administrative law. The "change of circumstances" in the field of civil law can be applied in administrative contract cases. Administrative contract is a double-service contract established by the agreement of intention of both parties, which may be affected by the change of situation in theory. At present, in the process of handling the situation change in the performance of administrative contract, our country overemphasizes the unilateral superior right of the administrative organ and the protection of public interest, neglecting the protection of the legal rights and interests of the relative party, which will not only reduce the relative party's enthusiasm for concluding the contract. It will also affect the realization of the purpose of the administrative contract. Based on the current legislative and practical situation of the situation change in our country, this paper analyzes the norms of foreign laws such as France, Germany and Taiwan, and discusses the application and rules of "change of circumstances" in the performance of administrative contract from the perspective of comparative law. This paper tries to construct the mode of dealing with the situation change in the administrative contract in accordance with the national conditions of our country. Specifically, the structure of this paper is as follows: the first part is the question. From the two cases of "new planning permission case" and "newly discovered cultural relic case", the concrete problems that need to be solved in the application of situation change in the performance of administrative contract are introduced. The second part is to demonstrate the rationality and necessity of the application of "change of circumstances" in the performance of administrative contract, starting from "the change of circumstances can be applied to all contracts" and "the application of situation change in administrative contract has particularity". The third part is the constituent elements of the change of circumstances in the administrative contract, which is the premise of discussing the rules of dealing with the change of circumstances. The "change of circumstances" in the field of civil law does not violate the mandatory provisions of administrative law, so the criterion of the determination of the change of circumstances in Article 26 of the contract Law of China can be applied to the case of administrative contract. The article also draws lessons from the experience of the extraterritorial law, and sums up the constitutive elements of the application of "change of circumstances" in the performance of administrative contract in our country. Specific include: the situation has significant changes, the change occurred in the process of contract performance, unpredictable, unaccountable and continue to perform will lead to unfair contract or the purpose of failure. The constitutive elements of the change of circumstances distinguish the legal concepts of "change of circumstances" from "force majeure", "commercial risk" and "manifestly unfair". The fourth part is the subject of the change of circumstances and its main rules. Firstly, the author analyzes that both parties to the contract have the right to apply the principle of change of circumstances in the performance of administrative contract in our country. Secondly, the paper discusses two main ways to deal with the problem of contract performance: negotiation change and unilateral change, including the relationship between the two parties and their respective applicable conditions. Thirdly, from the perspective of comparative law, this paper discusses the characteristics of the legislative cases of France, Taiwan and Germany, and tries to construct the mode of dealing with the situation change in the performance of administrative contract according to the current situation of legislation and judicature in our country. The fourth part is the conclusion, the first part of the case to re-examine to test the rationality of the model, and to summarize the content and core views.
【學(xué)位授予單位】：南京大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D923.6
，
本文編號：2175090
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