آثار العقد الإداري بالنسبة للغير في القانون الكويتي : دراسة مقارنة بين القوانين الوضعية والشريعة الإسلامية

Abstract

The research discusses and addresses the legal deficiency in the Kuwaiti legal system, and the way to find the solution of that deficiency, and specifically the effects of the administrative contract on the third party. This is because the Public Tenders Law No. (37) of 1964 and its amendments did not address the provisions related to these effects. This legal position raises other obstacles related to the appropriateness of applying the rules of contract that are contained in the Kuwaiti Civil Law No. (67) of 1980. This Ambiguity also arises the issues who are affected by the obligations arising from the contract. In view of this ambiguity, the lack of clarity arises from the concept of the third party and the legal basis that justifies the extension of the effects of the administrative contract to this third party. It is imperative to reform the Public Tenders Law No. (37) 1964 by introducing substantial amendments to effects of the administrative contract on the third party, and not to combine them with rules contained in the Civil Law. The objectives of the research are where explored the lacuna of the concept of the administrative contract in Kuwaiti Law and Islamic Law, and examined the extent to which the effects of the contract relating to the third party, and analysed the legal jurisprudence basis for the extension of the effects of the contract towards the third party, and expounded the provisions related to the effects of the administrative contract for the third party, and discussed the position of the Kuwaiti Judicial applications on the effects of the administrative contract for the third party. Various research methods have been used to conduct this research, including the descriptive approach, the inductive approach, the analytical approach, and the comparative approach. The findings of the research which the researcher has reached are that administrative contracts are distinguished from other contracts due to its subjective nature and its effects may extend to others. The research recommends that the necessity to support the idea that administrative contracts are not subjected to the relative rule of contract under Civil Laws' rules, since the administrative contract as mentioned above relates to the service of a public utility. In addition to the legal system, the administrative contract is entirely different from the civil contracts.