The Principle of Proportionality and The Privilege of Administrative Parties in The Administrative contracts

Abstract

   The contract is signed by the administrative authority, it might be a civil or an administrative contract. It is essential to be comprised of the exclusive agreement with the administrative parties. That means the element of administrative contract for the privilege of administrative parties cannot be waived. This is with the reason that it expresses the exercise of power to provide public services effectively. Moreover, it is also indicated the administrative contract and enhance the conditionally administrative contract getting more concise and clearer.
   However, the formulation of privilege of administrative parties in the administrative contracts has faced some problems: whether or not the criteria for determining the extent or limitation for the formulation of privilege of administrative parties is, and how it works. That is to say, in which level of privilege leads the contract becomes the administrative contract. And if the administrative parties are able to limit the contract elements which serve the privilege to themselves freely, this will extend the rules. This also makes the contract operated by the administrative parties become promises virtually. And finally, it may make the diagnosis of apartheid civil contract and the uncertainty of administrative contract.
   Consequently, this research aimed to study the criteria and limitation for determining the privilege of the administrative parties in the administrative contracts. The findings showed that the power use of the organizations should have boundary and limitation which can be proved. Therefore, the formulation of the privilege of the administrative parties in the administrative contracts becomes one of the formats of the government power. The administrative parties cannot have freely privileges in the administrative contracts by their own, but it is mentioned in the principle of proportionality because it is principle of constitutional law. Then, the Administrative Court applies the principles of proportionality to contemplate some cases involving with the administrative contracts in all processes not only making a promise, execution of the contract, but also contract supposition. With these, the application of the principle of proportionality to determine the privilege of the administrative parties is a general principle to commit the administrative parties to operate with in order to reach justice among public and private parties.