Reshaping The Legal Permissible Standards For Administrative Agreement

As a functional mechanism that innovates the traditional administrative model in the form of behavior or organization,the application of administrative agreements has been favored by domestic and foreign administrative practices since the development of public administration because of its functions in weakening the relationship between administrative confrontation and introducing private forces to better achieve administrative purposes.However,based on the dual nature of administrative agreements and contracts,after completing the proof of the permissible application of the agreement,it is also impossible to avoid the reconciliation of public law and private law in the application of administrative agreements,that is,the infiltration of the principle of contractual autonomy in the administrative field enables administrative agreements to be applied under the permissible criteria like private contracting,while the application of administrative agreements under the principle of administrative law cannot arbitrarily break through the constraints of statutory tolerance.The objective tension between the two is to respond appropriately to the practical question of "under what permissible criteria can administrative agreements be applied".In order to seek a solution to "how the application of administrative agreements can effectively embed the order of coexistence of public and private law",the specific permissible criteria that can be applied are derived through "the reconciliation of conflicts between administrative statutory and contractual autonomy" to obtain the corresponding convenience when the agreement is applied,and to form relatively clear normative guidelines in administrative practice and judicial review,in the exploration of the permissible criteria for the application of administrative agreements,The academic and practical levels have formed two different styles of normative standards based on different dimensions of understanding: First,strict statutory permissible criteria that tend to be governed by administrative laws,administrative agreements are regarded as alternative administrative means,and still retain the power factor,and under the consideration of the elements of "power control",the application of administrative agreements is no different from general administrative acts,and should be subject to the domination of authorizing laws.The second is the reverse exclusion and permissibility criterion that tends to focus on contractual autonomy,and administrative agreements are regarded as governance tools formed based on the agreement of the two parties,and under the consideration of the elements of "efficiency leading",administrative agreements can be tolerated and applied unless the law has prohibitive provisions or cannot be applied due to the nature of the matter.However,the two existing permissible criteria,in response to the requirements of "the order in which administrative agreements are effectively embedded in the integration of public and private laws",are still unreasonable in reality,such as "the adaptability of incorporation practice" and "the thoughtfulness of considering elements",and their core problems are mainly due to the deviation of the two in the understanding of the agreement and the limitations of the consideration of elements,because the permissive criteria constructed around the understanding of administrative agreements in different dimensions are often difficult to grasp the reasonableness of their embedded practice before completing the scientific understanding of administrative agreements.Accordingly,in order to achieve the reasonable embedding of the permissible standard,the core lies in the theoretical outline of the understanding of the administrative agreement,and takes the adjustment of the understanding of the agreement as the foothold and reasonably summarizes the relevant considerations.Therefore,the scientific exploration and rational construction of the application of permissible criteria for administrative agreements essentially point to a thorough analysis of the two dimensions of the understanding and consideration of administrative agreements.The scientific structure of the permissible criteria in the application of administrative agreements is first based on the effective framing of the scope of the object to meet the adaptability requirements of the permissible criteria in the practice embedding.In the understanding of administrative agreements,the actual normative identification is mainly based on the idea of "identification of elements of public law",however,this line of thinking faces practical difficulties in terms of the orientation and induction of elements and the connection between elements and facts,which makes it difficult to distinguish between private law contracts with administrative organs in the process of identifying administrative agreements.Therefore,in order to effectively clarify the essential difference between administrative agreements independent of private law contracts,it is necessary to retrospectively examine the origin of the application of administrative agreements as a "functional-oriented product".Based on different generation bases and development paths,although different countries(regions) have different orientations in the application of administrative agreements,they all stem from the reflection on traditional administrative action mechanisms or organizational mechanisms driven by different reform goals.On the one hand,reflections on traditional unilateral coercive,authoritarian and dominant administration have given rise to the German-style application of administrative agreements as alternative modes of conduct.On the other hand,the reflection on the traditional "all-powerful government" way of performing duties has formed an administrative agreement like the transfer of public affairs in countries such as Britain and France.Under the pursuit of the reform goal of service-oriented government and governance modernization,China has formed a differentiation of the application orientation of administrative agreements that replace or supplement the original administration to strengthen the interaction of meanings and transfer administrative services to achieve pluralistic governance,and thus form a similar understanding of administrative agreements to replace or supplementary agreements and public service transfer agreements based on the perspective of function-based.At the same time,based on the diversity and complexity of the micro-operation of the administration itself,it is still necessary to further examine the relationship between different administrative types and typed agreements,and from the functional perspective,the two types of agreements with different functional emphases have formed a corresponding relationship with the two types of administrations of intervention and payment,thus deepening the understanding of administrative agreements in the application of real administration.The typological understanding of administrative agreements determines the differentiation of its permissible standard structure,but the differentiated structure of the allowable standard cannot be formed under a general understanding,and its specific structure still needs to be transformed into micro-considerations of relevant influencing factors to be realized,so the considerations should be reasonably summarized.The difference in the structure of the permissible criteria stems from different interpretations of "legal reservations",which can be summarized as the consideration of elements such as "degree of influence of rights","need for flexible governance",and "importance of matters" in terms of their specific reasons for interpretation.Since administrative agreements as a functional mechanism do not exist separately from specific administrative fields such as interfering in administration and payment administration,the principle of legal reservation does not directly act on administrative agreements,but should be referred by the theory of choice of administrative forms under the correspondence between administrative agreements and administrative categories,and the elements of consideration for the application of legal reservations are analogous to the influencing elements of the permissible criteria of administrative agreements.From the perspective of the considerations of legal reservations,it boils down to the care of the public strength of the administrative target itself,but in order to ensure the adaptability of practical application,it should also be supplemented by the examination of the degree of normativity of external mechanisms,and thus form a consideration system of "internal factor considerations as the main and external factor considerations as supplements" in the construction of the permissible criteria.Specifically,the internal considerations based on the "public strength" of the subject matter of the agreement itself,under the formal characteristics and functions of the typed agreement,can be differentiated down to the impact of alternative or supplementary administration on rights(which covers different effects,different degrees,and different types of rights effects),as well as the coordination of publicity and efficiency in the transfer of public affairs(where publicity is the decisive element and efficiency is the secondary element).At the same time,due to the relevance of the various links regulated by the administrative agreement,the necessary attention to external elements mainly revolves around the judgment of the normative application of the agreement,covering multiple aspects such as subjects,procedures,and remedies,and is specifically reduced to the degree of standardization of the qualifications of the subjects of the administrative agreement,the completeness of the procedural anti-fraud mechanism,and the realization effect of the administrative agreement relief.In general,under the understanding of the typology of administrative agreements,whether from the perspective of their internal needs and external normative performance,the statutory permissible criteria have their objective basis and realistic basis for survival,but their structure still needs to be reshaped.In other words,the statutory permissible standard is due to the public’s concerns about the consequentialism of the application of administrative agreements,concerns about the sustainability of public law guarantees,and instinctive doubts about the transfer of public functions,and in terms of their inherent momentum for reshaping,typed administrative agreements,whether alternative or supplementary agreements or public service transfer agreements,are still subject to the need for legal retention norms due to the impact of specific administration on rights or public norms.At the same time,the construction of statutory permissibility criteria does not mean that the application of administrative agreements can only adopt a general general legal normative model,and the hierarchical differentiation of statutory permissibility can be based on different considerations of different types of agreements and match the legal norms of different levels for orderly hierarchical transformation.In addition,the dynamic adjustment of permissible criteria that can change with the influence of each element also contributes to the reshaping of statutory permissible criteria.In terms of its external drive,the generalization of the qualifications of administrative agreement subjects,the existence of barriers to the operation of procedural fraud prevention mechanisms,and the limitations of administrative agreement remedies provide a reasonable basis for statutory permissible criteria.It can also be summarized from this that in the clarification of statutory permissible criteria,the essence contains two kinds,namely,statutory permissibility required by the nature of the agreement,and statutory permissibility due to the failure of external norms.Although the clarification of the statutory permissible criteria in the application of administrative agreements is a common conclusion based on the understanding of the type of agreement combined with the consideration of internal and external elements,in the specific structure of its hierarchy,because external elements are difficult to form a concrete quantification,the specific structure of the permissible criteria applicable to the agreement should be mainly based on the microscopic considerations of internal elements.Specifically,in the application of alternative or supplementary agreements,in order to effectively prevent the infringement risks brought about by the expansion of the discretionary space of power,the construction of its statutory permissible criteria should be based on the normativeism of "controlbased",mainly focusing on the consideration of the impact of the agreement on rights,according to the differences in the effect and type of rights impact,in the construction and arrangement of statutory permissible criteria,respectively,the permissible criteria of the narrow legal level and the permissible criteria subject to the basis of the substituted or supplementary administration are formed.Permissible criteria at the level of general normative documents.In the application of the official service transfer agreement,in order to ensure that public-private cooperation helps the efficient performance of public service,the structure of the statutory permissible standard should be based on the functionalism of "utility-based",mainly focusing on the consideration of the importance of the matter itself and the impact of efficiency in the transfer of public affairs,based on the overall consideration of the maintenance of publicity and the reasonable realization of efficiency,in the construction and arrangement of the statutory permissible standard,the permissible application standard at the level of general normative documents should be formed,and a prohibitive statutory permit is formed for the exclusion of the application of the official business transfer agreement.In addition,under the structural decomposition of the intervention function and the refinement of the intervention status,the abovementioned general permissibility criteria have also changed in the change of relevant elements,and two exceptions have been generated,that is,under the tolerance of the narrow law,some intervention functions are decomposed through structural decomposition,and there is the legitimacy and feasibility of the application of the official business transfer agreement,and at the same time,under the screening of "positive intervention" and "factual intervention",the latter as the intervention state formed by the self-control of the right subject.In the application of alternative or supplementary agreements,conditional and free permissible application is formed.In addition,as a static structural design,the hierarchical transformation of statutory permissible criteria should also clarify the legal effects of violating the criteria in order to ensure the legal effectiveness of their dynamic application,so as to standardize the application of administrative agreements in binding administrative practice,and to form clear guidelines for the judicial determination of the legality of the application of administrative agreements.In general,the legal effect of the application of administrative agreements violating the statutory permissibility criteria is mainly reflected in the impact on the effectiveness of administrative agreements,under the correspondence between administrative agreements and administrative categories,the validity judgment of administrative acts has become a reference for the analysis of the legal effect of administrative agreements,while a slight difference is that administrative agreements formed based on the consent of both parties often have stronger inclusiveness and healing ability in the face of "defect infection" of inappropriate legal content.Since the statutory permissible standard,in addition to being the basis of the permissible norm,also forms a regulatory normative requirement in the application of the agreement,for the boundary of the statutory permissible standard,which inevitably involves the violation of the regulatory tolerance norm,under the reconciled application of the administrative law and the civil law on the validity of the violation of the permissible norm,its conclusion does not inevitably lead to the invalidity of the administrative agreement,based on the difference in the functional structure of different types of administrative agreements,and the difference in the normative emphasis of the statutory permissible standard,Under the decomposition of different types of agreements that violate their corresponding permissible criteria,their legal effects are mainly classified as invalid,non-effective,and undetermined validity of administrative agreements.