Links Between the Nature of the Administrative Act and the Administrative Contract: the Theoretical Aspect

Gytis Kuncevičius

Abstract


In the legal systems of different countries, the phenomenon of contract and the application of legal regulation technique based on it in administrative law manifested itself in different forms, one of which is the institute of administrative contracts. In the comparative administrative law jurisprudence, the formation of this institute is considered to be the result of the closeness (conformity) between the classical administrative act and the private (civil) contract. This means that the legal nature of the administrative contract is twofold: the elements of both the administrative act and the civil contract are of high importance.
It is acknowledged that in the administrative contract there exist essential accents of the private contract. However, on the basis of the experience of comparative administrative law one can make a conclusion that its legal nature should rather be associated with the transformations of the administrative act caused by the incorporation of the attributes of private law regulation into administrative law. It is natural that the formation of the administrative contract as an interdisciplinary legal institute set for the comparative law jurisprudence the task to explain the links between its nature and administrative law.
The comparative administrative law jurisprudence aimed at reaching this objective by demonstrating the elements that are common to the nature of the administrative act and the administrative contract. In the jurisprudence of Western European countries (France, Germany), two main doctrines (trends), in which the abovementioned elements unfolded, were developed. The trend the representatives of which sought to join the administrative act and the civil contract (transaction) under a single notion of a legal act was the first step that allowed logically relating the administrative contract as a type of contract to the administrative act on the basis of the features of the latter common to the acts of private law (transactions). The doctrine of bilateral (multilateral) administrative acts was the next logical step. This doctrine allowed extending the notion of the legal nature of the administrative act, thus attributing the administrative contract as a bilateral (multilateral) act to this category.
In the legal doctrine of Lithuania there exists no clear and well-established tradition regarding the acknowledgement of bilateral (multilateral) administrative acts, though it is possible to notice the prevalence of the tendencies of the German law tradition. However, even the few scientists’ expressed opinions on the issues of the legal nature of administrative acts are divergent. This not only shows insufficient scientific exploration of the problem, but also allows making a conclusion that the traditionally formed generalisation of the unilateralness of the nature of the administrative act does not fully correspond to legal realities and burdens the doctrinal substantiation of the legal nature of the administrative contract.

Keywords


legal act; administrative act; contract; administrative contract; legal nature

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"Societal studies" ISSN online 2029-2244 / ISSN print 2029-2236