On The Priority And Beneficial Power Under Administrative Agreements

In the recent decade,the practice of administrative agreements has developed tremendously in the wave of the administrative democratization which is represented by public-private partnership,administrative contracts and privatization.As a privilege of administrative subjects,the priority and beneficial power under administrative agreements is much disputable and concerned in theory and practice for a long time.As administrative agreement disputes are included in the case scope of administrative litigation,and the priority and beneficial power under administrative agreements is recognized by the judicial explanations of the Supreme Court,the utilization of the priority and beneficial power under administrative agreements is much often,which is deeply affecting and shaping the practice of public-private integration and is also creating some confusions and argues in theory and practice.Traditionally,the concept of the priority and beneficial power under administrative agreements comes from the public law,introduced by the continental law system,the major theoretical basis of which is the protection of public interest and control theory,with the characteristics of unilaterality,privilege and enforceability.It is considered as the enforcement of administrative power with obvious thoughts of the binary separation of the public and the private.To consider the situation of the practice of public-private partnership in the area of China’s public products and services,as well as that of the application of civil rules to administrative agreements,the priority and beneficial power under administrative agreements is,as an administrative power with consensus apart from civil rules,quite valuable and necessary for special protection of public interest.But there are also problems such as thinking merely from the perspective of the public law,overemphasis on public-private conflict,being static in recognizing the public interest,insufficient concerns on the commonweal nature of public products and services to be protected by administrative agreements,unable to give better answers in respective of balancing interests,obtaining commonweal aims of administrative agreements and protecting the public interest dynamically.The limitation of mere public law perspective shall be improved,more concerns shall be given to the adjustments made by the priority and beneficial power to the interest balance set by administrative agreements.The concept shall be reshaped under the idea of public-private integration.From the perspective of dynamic adjustments of interests under administrative agreements,the real nature of the priority and beneficial power under administrative agreements is a trigger and right of breaking the former interest balance and rebuilding a new one.In fact,the current laws and regulations on the priority and beneficial power under administrative agreements as well as related judicial practice present a public law trend and an administrative tendency reflected by the concept and the theory,and in some degree,increase abusement and arbitrariness in the exercise of the right.At the same time,there are other problems such as lack of system and internal logistics,the legitimacy of making general rules by judicial explanations is under argument,inadequate function,etc..Therefore,it is urgent to construct a system of the priority and beneficial power under administrative agreements which can properly follow the trend of the public-private integration and the socialization of the public governance,in order to realize multidimensional interest balance and proper adjustment.“Quantitative balance” is just an idea based on its function of“interest adjustment” and “interest balance”.The idea of quantitative balance,based on the balance theory of administrative law,introduces the cost-benefit analysis in economics for reference,and expands the application of the principle of proportionality as for the exercise conditions and rationalities.Through observing different proportions of commonweal elements and commercial elements,and analyzing franchise agreements with public,non-cooperative and cooperative characteristics,we can find that in an administrative agreement for providing specific quasi-public products and services,there is a best proportion of commonweal and commercial elements,which can make a status of interest balance,and therefore realize efficient allocation of resources and continuous supply of quasi-public products and services with high efficiency.Such kind of best proportion is called “quantitative”which can be calculated to reflect the best proportion of resource input by the administrative subject under the agreement among the total public and private input.Accordingly,the priority and beneficial power under administrative agreements is a right of adjustment to make new“quantitative balance” when the former balance was destroyed due to the changes of relevant elements in the public interest.In the model of quantitative balance,the way of observing the public and the private,the administrative subjects and objects is changed,therefore they are not in static contradict.It emphasizes the changes of interests and focuses on the function of dynamic adjustment of interests by the priority and beneficial power under administrative agreements.On one hand,the idea of quantitative balance discloses that the priority and beneficial power is not simply a balance or conflict between the public and the private as traditionally considered,but contrast of old and new public interests,because the efficient and continuous supply of quasi-public products and services guaranteed by the former agreement present the public interest.On the other hand,the idea of quantitative balance explains the necessity and exercise conditions of the right,discloses the proper proportion of commonweal and commercial elements,the quantitative relationship between the input of administrative subjects and that of there counterparts.Meanwhile,the idea of quantitative balance breaks the limitation of traditional principle of proportionality emphasizing “right limit” and static calculation of benefit and lost,therefore develop the right exercise in dual directions of “limit” and “use”,and dynaic adjustment in the dimension of time.It is an expansion and development of the principle of proportionality.The construction and improvement of the substantive rules and supervision system of the right shall be under guidance of the idea of“quantitative balance”.As guiding principles,it shall be directed to guarantee continuous and excellent supply of quasi-public products,active participation of social capitals,reasonable allocation of risks,and present the spirit of balancing multiple values.As of rule making in middle and micro dimensions,the idea of “quantitative balance” shall be a key in order to build a scientific and reasonable exercise mechanism.A trigger shall be set from perspectives of pre-conditions,key elements,correction elements,and make sure that the right is just behind civil contract rights.The idea of “quantitative balance” shall be used as a renovation and development of the principle of proportionality,proving the necessity and rationality of the right in following three dimensions:whether the change of public interest causes the quantitative imbalance of the former agreement;whether such quantitative imbalance destroys the efficient supply of quasi-public products and services under the agreement,or makes reasonable profit impossible for counterparts;whether the exercise of the right can restore the agreement or make a new“quantitative balance”.In respect of legislation,the blank shall be filled as soon as possible.In respect of supervision system,beside legislative regulation and procedural control,there should be a system of post supervision such as administrative consultation,administrative mediation,administrative review and administration litigation,focusing on regulations of judicial review and administrative recuperation comparable to civil remedies to ensure smooth running of the substantial and supervision systems.