Анали Правног факултета у Београду

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УПРАВНИ УГОВОРИ И ОБЛИГАЦИОНИ ОДНОСИ РАДНИХ ОРГАНИЗАДИЈА

The author points that there is not a common standpoint as to the legal nature of administrative contracts in the comparative theory of administrative law, and that all the individual concepts are a reflexion of the historical development of a particular society or of the influence of a particular theoretical concept, especially the French one, on the juristic theoreticians in individual countries. He stresses that the historical development of the Yugoslav law up to 1941 was in favour of introduction of the administrative contract. However, the Yugoslav socialist law does not show any tendency to institute special administrative contracts as a special legislation, but as a rule the general regime of contracts is applied to the contracts made by the administration, if not differently provisioned by law. In the practice of the Yugoslav economic courts the same standpoint is adopted. In as much as it proved necessary to contest legality of an administrative decision, that preceded the contract, or that was made with reference to the contested contract, this dispute would be settled in the Yugoslav law as a preliminary issue. The author insists that this preliminary issue could be settled either by the court competent for administrative suits, if expressly provisioned by law, or in other cases by the court of general jurisdiction that decides on the contested contract relation itself. The author points that the theories of law in the USSR, Poland and Czechoslovakia differ in this matter from the Yugoslav jurisprudence. The tendency of the theory of the cited countries is to introduce administrative contracts, for in this way legality and protection of a party is better safeguarded in their law, since the court settles the disputes aristing from administrative contracts. If only an administrative decision is involved, creating obligations for the parties, eventual disputes are still settled only within the administration, for as a rule there is no administrative suit, excepting some cases of judicial control of particular administrative decisions. The Yugoslav law entirely subjugates administration to the law and to the judicial review, for not only the courts competent to settle administrative disputes as to the legality of a final administrative decision, but also the disputes resulting from contracts made by administration are settled by the courts on the ground of rules valid for obligations and contracts and general usances. The author points that The Outlines of the Law on Obligations and Contracts by Professor Mihailo Konstantinović could greatly contribute to the right solution of this issue in the Yugoslav jurisprudence, for the proposed prescriptions are not rigid rules, but the result of modern standards for solving obligation and contract relationships in the comparative law and for meeting the requirements and demands of the modern Yugoslav society. Their particular importance is in fact their extensive standards providing that evolution of the requirements of life be accompanied by the evolution of law, without legislator’s interventions.

RÉSUMÉ Les contrats administratifs et les rapports d’obligation des organisations de travail qui exercent les pouvoirs publics L'auteur signale que sur la question de la nature juridique des contrats administratifs dans la théorie comparée du droit administratif l’accord n’est pas réalisé et que toutes les diverses conceptions à se sujet sont le reflet de révolution historique de la société déterminée ou de l'influence de la conception théorique déterminée, en paiticulier de la conception française, sur les théoriciens du droit dans les différents pays. Il a souligné que l’évolution his tori que du droit administratif yougoslave jusqu’en 1941 s’est de plus en plus dirigée dans le sens de l’introduction du contrat administratif. Cependant, le