Trials on Administrative Contracts in accordance with the Law of People’s Republic of China Compared to Thailand

Abstract

The dispute over administrative contracts is the second most prosecuted case against the Thai Administrative Court after the administrative case related to personnel management. The Supreme People’s Court of the People’s Republic of China recently issued the Provisions of the Supreme People’s Court on the Trial of Certain Issues in Cases of Administrative Agreements (2019) to be used primarily for judicial interpretation on Chinese administrative contracts, effective on January 1, 2020 onwards. Therefore, the article’s objective is to compare legal studies on trials of administrative contract under Chinese and Thai law and regulations, and relevant adjudications.

The study concluded that the disputed ruling on the administrative contracts of both countries would be comparatively noted on six observations: (1) the disputed parties to the administrative contracts. Both countries have the same commandment that one party must be an administrative entity. But Chinese plaintiff must be private and the defendant must be administrative organ, while Thailand requires only one of its parties to be administrative entity; (2) the nature of administrative contracts. both countries have established administrative contracts that are clearly characterized by law such as concession contracts, contracts regarding the entitlement or exploitation of natural resources, and are open to determining other administrative contracts by condition or by the interpretation of the court; (3) arguments of jurisdiction in judicial and court-level rulings. On the issue of jurisdiction, there are differences since China is a single court system by people’s courts. While Thailand is a dual court system where administrative contracts are within the jurisdiction of the administrative court. The two countries use the same two-court judicial system, with China starting cases at the people’s court of first instance level and reaching to the last at the intermediate people’s court or equivalent to the court of appeal, while Thailand’s starts at the Administrative Court of First Instance with the appeal to the Supreme Administrative Court for the final judgement; (4) cause of action. China’s case only identifies the 3 causes of action for administrative contracts as defined by the law, while Thailand identifies the cause of action in the event of arguments regarding administrative contracts; (5) prosecution period. The prosecution period is defined differently, with China using the same prosecution period as the administrative cases in general. While Thailand has specifically defined the prosecution period for the administrative contract; and (6) the administrative contract’s court proceedings. People’s Court of the People’s Republic of China uses the accusatorial system like a regular case while the Thai Administrative Court is the inquisitorial system. However, both courts use a quorum for trial and adjudication. Chinese court has given the opportunity for People’s Assessors to join a quorum, while the Thai Administrative Court has judge-Commissioner of Justice who makes a statement to balance a quorum’s use of power.