The administrative contract includes a wide section of various legal relations. Read about what it is, what features and types it has, why some lawyers dispute the very existence of such documents and read other interesting information in the article.
The concept
An administrative contract is an agreement concluded between two or more subjects of legal relations, as a result of which certain rights and obligations are established, changed and terminated. Through it, executive state bodies (federal, regional or municipal) sign intergovernmental, departmental, regional and other types of agreements.
According to another definition, an administrative contract is a bilateral or multilateral document that is based on administrative legal acts and is developed based on the mutual expression of will of the subjects of the relevant branch of law, which establishes, changes and terminates the rights and obligations of the parties.
Signs
Membership in this agreement can be identified by certain criteria. These include the following:
- The basis of the contract is administrative law.
- Its base is concluded in the main law of the country - the Constitution.
- The contract involves two or more entities, one of which is a state body or its representative.
- It is concluded as a result of agreement of the parties.
- It is calculated for a certain period of validity.
- Signed in accordance with the procedure established by law.
- Unilateral refusal of the concluded contract is not permitted.
- In case of non-compliance with the conditions comes legal liability (which is prescribed in the agreement, and in the absence of relevant clauses comes in accordance with applicable law).
- The objectives of the agreement are to ensure the public interests of the participants.
The main provisions of the document
An administrative contract is considered as a legal organizational form of fulfillment by its parties of tasks and powers in which certain economic, social, cultural and other results are achieved. The main function is to satisfy public and private interest. Thus, an agreement on the protection of a citizen by police officers is a typical administrative agreement.
The concept of an agreement is supplemented by a legal form for the fulfillment of its conditions by the participants of the corresponding legal personality. Accordingly, if the executive bodies appear in the contract as bearers of the legal capacity of civil or labor law, then we are not talking about administrative legal relations, but about civil or labor ones.
Most often, the parties to such an agreement are the executive bodies and the local administration. But in addition to the administrative authorities, commercial and non-commercial companies in the administrative contract may act as parties. An example of this is the agreement between regional government officials with RAO UES on reforming energy systems, the administration with RAO Russian Railways. Thus, legal relations can be not only horizontal in nature, but can also be managerial in the literal sense of the word.
Also, parties can perform specialized tasks at different levels, while entering one or different systems. The main condition is that the contract is concluded on the principle of voluntariness, and its parties are equal.
If the agreement provides for the subordination of one party to the other, then such legal relations cannot be considered an agreement. They are possible only in the form of a specific form of activity of legally unequal parties.
The management entity enters into an appropriate contract within the framework of competence. At the same time, tasks within the scope of his activity are solved. The agreement focuses on ensuring public interest.
The contract is signed by officials, for example, on behalf of the executive bodies or local authorities. In some cases, a preliminary review and approval of signed papers is provided.
The document may be a prerequisite for the signing of other similar agreements or of a different nature (for example, an administrative labor agreement).
Disputes and conflicts arising from the relevant agreements are resolved through negotiations. If this method does not lead to the proper result, then the parties go to court to protect their interests.
Types of contracts
An administrative contract is an agreement that comes in many forms. The criteria for this are:
- Subject.
- Legal properties.
- The nature of the relationship of the parties.
- Purposefulness.
- Circle of parties.
- The number of participants.
Consider these criteria in more detail.
Types of subject
Depending on the subject, the administrative agreement may be in the form of a contract:
- On competence (in which the powers are divided, as well as the subject).
- On securing state needs (in the form of state order).
- On the management of state-owned property.
- Labor agreements concluded with civil servants.
- Tax and financial.
- On cooperation and joint activities.
- On the provision of services of state bodies and municipal authorities to individuals (housing and communal services, improvement, and so on).
- About investments.
- Other agreements.
Types of Legal Properties
Administrative contract can be considered in terms of legal properties. According to this parameter, it happens:
- Establishing the right (in which new rules are created, including administrative).
- Applicant of the law (resolves specific cases in the field of public administration).
Relationship Views
If you consider an administrative contract based on a description of the relations of entities, then it can be an agreement:
- Parties that do not have control and other powers in relation to each other.
- In which one entity has special powers in relation to the counterparty.
Targeting Types
If the conclusion of an administrative contract is considered on the basis of purposefulness, then it happens:
- Regulating the actions of persons who are subordinate to the parties to the contract.
- Regulatory management actions that are coherent.
- In the form of mixed agreements.
Types of subject composition
Based on the subject composition of the agreement may include:
- Between the executive branch and state bodies (regional or municipal).
- Between governmental and non-governmental organizations.
- Between government agencies and employees.
- Between citizens and management entities.
Other species
If we consider the types of administrative contracts depending on the number of parties, then they can be:
By difficulty level:
- Ordinary.
- Complicated.
- Unique
By content:
- Organizational.
- Mixed (where organizational issues relate to labor and property issues).
Pros and Cons of an Administrative Contract
In normative legal acts this term is not used, which is found in the legal literature of the “Administrative Law” industry. The administrative contract is often discussed by practicing lawyers. It stands out as an independent form of government. Lawyers hold one of two points of view:
- They question the very existence of such agreements.
- They do not doubt their capabilities, as well as the fact that such documents are used in management practice.
The first opinion indicates that contractual legal relations inherently do not arise between entities in the presence of managerial tasks. This objection finds many proponents of treaties in constitutional law. Based on them, individual relations that are accepted in the managerial field are also considered.
The second opinion, in which an administrative contract is possible, is considered constructive and is based on extensive experience in scientific work and practice. But despite this, the features and types of such a document are still controversial. They even tried to attribute the agreements to civil law contracts.
Contract or agreement - how to do it right?
Discussions do not stop at the above aspects. The authors also argue about the correct use of the term “civil administrative contract” and propose to use the term “agreement” instead. Moreover, it is believed that the agreement more clearly expresses the corresponding relationship between the entities. Although legally, these terms are not fundamentally different.
An agreement means a form of transfer of some authority to local authorities by state bodies, and vice versa. Thus, the parties are the executive bodies (of different levels), the subject is the transfer of some authority. Also, the conditions are the established transfer procedure, the financial component, the interaction of the parties, and so on. The agreement may also provide for liability for violation of its terms, unilateral refusal, termination and compensation of damage.
At the same time, both terms are equally applied in civil law, as well as in labor law. However, the distinction must be fixed. One way or another, an administrative contract is a reality, and it is used and expands its action in the management sphere.
Examples
Agreements and agreements may be concluded between managerial state bodies and business entities, for example, on holding events with the aim of solving tasks of economic, social or cultural significance. An example of this is the agreement of the regions of the Russian Federation with transport enterprises that are not subordinate to state structures on improving transport links for the population and servicing enterprises. There are also agreements of management bodies on cooperation. An example of this is an agreement on holding cultural days, fairs and other events.
Registration can be carried out by state bodies and municipal authorities. These authorities can also help fulfill specific tasks.
Other contracts are concluded in accordance with the law when filling public service posts. Moreover, not only administrative law applies. The administrative contract in this case contains the elements of labor law. The same rules apply when it comes to replacing the governing bodies of a unitary enterprise.
Government contracts are a special type of contract. They represent a form of implementation of government orders used in various fields of activity. The main feature of the relevant contracts is that they combine the norms of administrative and civil legislation. Other conditions include the following:
- The provision of the state contract is provided for by law.
- One of the parties is the state (in the form of an appropriate body or institution).
- The contract is in the public interest (of different levels) and does not have commercial objectives.
- The customer in the person of one or another state structure acts as the obligated party.
Conclusion
Despite the ambiguous attitude to the administrative contract, it undoubtedly plays an important role in the interaction of various state structures and other parties. It differs from agreements provided by other branches of law, but in some cases it may intersect with them (for example, with labor or civil law).