The Predicament And Outlet Of The Trial Of Administrative Agreements

China is currently in a period of transition,with its government transforming from the “management-oriented” to the “service-oriented” and its administrative mode shifting from discipline administration to service-oriented administration.Administrative subjects now attach more importance to the involvement of administrative counterparts,listen to their opinions and take various actions to achieve administrative goals,which characterize the reform on the administrative rule of law.Administrative agreement,as a flexible approach to administrative management,is being widely used in administrative practice.Compared with the rapid development of administrative agreements in practice,the theoretical research on administrative agreements in China lags behind.Without a systematic and mature doctrine,there is no authoritative or generally recognized theory on the concept,judgment criteria and categorization of administrative agreements so far,causing much confusion in the usage of this concept.In fact,“administrative agreement” is much less used than “administrative contract” and “administrative treaty” in the research monographs of Chinese scholars of administrative law.The mixing-up of the three terms prevails.The amendment of the Administrative Procedure Law of May 2015 affirmed for the first time the concept of administrative agreement at the level of positive law,and relevant cases began to be accepted as cases in administrative litigation.Administrative agreement is further defined in Article 11 of the Interpretation of a Number of Issues in the Application of “The PRC Administrative Procedure Law”,promulgated by the Supreme People's Court,which was enacted in May 2015 as well.At the same time,some principled provisions have been made on the procedural and substantive issues of administrative agreement cases,but no further provisions have been made on the judicial review rules of administrative agreement cases.Based on the analysis of the judicial documents on China's Judgment Document Network from 2015 to 2018,a number of problems are found,such as different criteria for identifying administrative agreement,narrowed scope of accepting cases,confusion of law application,insufficient response to plaintiffs,and poor effect of resolving administrative disputes.With the explosion of the administrative agreements cases,administrative judges,accustomed to focusing on the legality of administrative acts,are facing unprecedented difficulties in hearing administrative agreement cases due to the lack of administrative agreement theory and lagging in administrative legislation.For example,insufficient understanding of administrative agreement---what elements do administrative agreements possess and what elements belong to procedural elements or substantive elements? Differences on legal interpretation---what kind of administrative agreement disputes falls into the scope of accepting cases,and whether they are limited to the four situations stipulated in Article 12 of the Administrative Procedure Law? How to understand the relationship between administrative agreement and administrative act? Is administrative agreement itself a special administrative act or should we separate an administrative act from the dispute of administrative agreement for examination? Whether administrative agreement litigation should be regarded as a special type of administrative litigation or as a common one that falls into the basic categories of administrative litigation and is applied corresponding trial rules to? Judging from the process and actual effect of the trial of administrative agreement cases,it has not reached the legislative expectation that administrative litigation can effectively solve administrative agreement disputes.The Administrative Procedure Law gives citizens,legal persons or other organizations the right and approach to resolve disputes over administrative agreements through administrative litigation.Administrative judges have the responsibility to settle disputes over administrative agreements based on existing legal norms and improve the quality and efficiency of administrative agreement cases.Problems with legal practice can be expected to be solved through legislative improvement and academic research step by step,but not overnight.From a practical point of view and in light of the actual situation of administrative trial in China,the theoretical disputes which are not closely related to judicial review practice may be temporarily shelved.Aiming at the problems in the three stages of acceptance,trial and adjudication of administrative agreement cases,to explore the overall thinking and basic concepts of the trial of administrative agreement cases,form a preliminary consensus on the principle issues,and then gradually resolve other differences so as to improve the overall level of administrative agreement case trial seems to be more in line with the current practical needs of the trial of administrative agreement cases.To get out of the dilemma of the current trial of administrative agreement cases,we can start from three aspects: first,the review of prosecution conditions can be moderately relaxed.On the basis of accurately grasping the concept of administrative agreement,different kinds of “non-named administrative agreement”,if they basically conform to the formal requirements of administrative agreement in the examination stage of administrative litigation,can be recognized as administrative agreements.Without explicit prohibitive provisions,disputes arising from administrative agreement can be included in the scope of accepting cases,so as to broaden the channels of judicial relief for administrative agreement disputes.Secondly,to establish categorized trial rules.The categorization of administrative disputes is the basic trend in the development of modern administrative litigation system,including China.Administrative judges shall take departure from the traditional legality review mode of administrative acts and incorporate the disputes over administrative agreement into the overall framework of categorizing administrative litigation,under which categorizing various administrative agreement cases according to their attributes and characteristics and clarifying the trial rules and judgment approaches of various categories of cases can help to form a loop-free rights relief mechanism and supervise administration in a more comprehensive fashion.Thirdly,to give priority to the use of administrative legal norms.Administrative agreements are both administrative and contractual.To the unilateral administrative acts of administrative organs,such as exercising the right of preferential interest,which do not differ much from general administrative acts,administrative laws and regulations including the Administrative Procedure Law shall be fully applicable.The breach of contract by administrative organs in the process of concluding,performing or altering administrative agreements shall be dealt with in accordance with administrative laws and regulations,with reference to the related provisions of civil laws and regulations.