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行为的定性直接影响着法律规范的适用,在司法实践中,对行政合同的适用常常会出现不同的选择。有些法院采用民事诉讼程序进行处理,有些则采用行政诉讼程序进行处理,这种处理方式不仅不利于我国司法的稳定性,同时也不利于我们对行政合同的理解。出现这一问题的关键是:在我国的司法实践没有全面、系统、准确的辨别行政合同与民事合同,对两者的把握不明确。本文基于这一问题点,来把握行政合同与民事合同的区别,阐述行政合同的基本构成,以便推动我国行政合同的司法适用,保障行政合同司法程序的统一性。
The nature of the act directly affects the application of legal norms, in the judicial practice, the application of administrative contract often appear different choices. Some courts use civil procedure to deal with others, while others use administrative procedure to deal with. This approach is not only not conducive to the stability of our country’s judiciary, but also not conducive to our understanding of the administrative contract. The key to this problem is that judicial practice in our country does not comprehensively, systematically and accurately distinguish between administrative contracts and civil contracts, and the two are not clearly understood. Based on this issue, this article tries to grasp the difference between administrative contract and civil contract, and expounds the basic constitution of administrative contract in order to promote the judicial application of administrative contract in our country and guarantee the unity of judicial procedure in administrative contract.