Upravni ugovor kao institut javne uprave
Filipović, Zoran J.
Faculty:University of Niš, Faculty of Law
Dimitrijević, Predrag M.
Vučetić, Dejan R.
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In the process of public administration reform, one of its realization forms becomes particularly important - an administrative contract. Having different names, but yet with mainly the same basic characteristics, it found its application in many areas of public administration. Administrative contract is used to establish specific administrative legal relations between public administration and private entities, which are not based on authoritarian and unilateral administrative act but on the consent of their will. This concept, in various different forms, has a prominent place in the legal systems of a large number of developed countries. Despite this fact, the character and the legal nature of administrative contract as one of the public administration activity forms nowadays has not become the subject of systematic research enough, primarily in the domestic as well as foreign legal literature. To achieve this goal, it is necessary to consider a number of issues that include: the precise
definition of the origin, legal nature and legal regime of administrative contract, characteristics of administrative contract as the institute of public administration, its theoretical concept and its relations with similar institutes, such as private-public contract, administrative act and others. The tendencies and perspectives of its development in modern political and legal conditions in the world and in our country should also be noticed. To perceive this complex problem, an interdiscipli-nary approach is sometimes required. Considering the administrative contract in its historical and spatial context, it is necessary to analyze some legal-political, economic-social and other causes of state activity expansion. This is directly related to suppressing the term ‘administrative function’, which means the legal regime and the way of using administrative power, and its replacement by the term ‘administrative action’ as a sum of authoritarian and non- authoritarian activities which the state directly uses to achieve its social objectives. In this process, the theory of public services and practice of the State Council in France has given an immeasurable contribution, and it created the space for later transformation of governance and creation of more opportunities for cooperation between public and private sectors through a contractual relation-ship. On the basis of the model of administration as a public service, a new concept that appears in the mid-twentieth century, called "New Public Management” is based on, which represents the concept of democratization and modernization of public admini-stration, and contract as the legal basis for many administrative activities. Comparative analysis of administrative contracts, primarily in French and German legal system as well as the situation in administrative theory and practice of administrative agreements in a number of other countries (especially in continental Europe, including Russia and Ukraine), is important for a proper under-standing of the administrative contract institute. This also applies to examples from common law countries practice, such as the USA and the UK, whose importance lies exactly in their specifics in this area. A comparative analysis was performed to compare legal system of Serbia and other countries, including the legal systems of countries in the region, with which Serbia share the same historical and legal heritage. This enables the identification of material and admini-strative characteristics of administrative contracts, as a specific form of public administration activities. The analysis of the effect of some forms of administrative contract application in practice, such as concessions of public services, public-private partnerships and others, should enable defining conditions and assumptions for the achievement of the basic objective of scientific research, which is generalization of new theoretical knowledge about the institute of administrative contract and its place in the modern system of public administration, as well as defining possible direction of its further development. This also means defining requirements and recommen-dations for improvement of administrative and contractual regime as a whole, and the introduction of administrative contracts in the legal system of Serbia and the countries in region, in which it is already latently present.View More
Keywords:Upravni ugovor, javna uprava, javne službe, reforma uprave, javno-privatno partnerstvo, koncesije, novi javni menadžment; Administrative contract, public administration, public services, public administration reform, public-private partnership, concessions, new public management
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