Study On The Judicial Relief In The Government Franchise Agreements

The government franchise agreement is one kind of administrative contracts. Containing both the power of public law and right of private law, it is a coalition of administrative act and contract. The judicial proceeding in which the operating agreement franchised by government can be available exists in two stages, as its legislation history is illustrated by the author. The first stage is the stage when civil lawsuit and administrative lawsuit are mixed together; the second is the stage of administrative lawsuit. Before the new Administrative Procedure Law was issued in 2015, there was still a quite large divergence on suitable judicial proceedings for cases of the operating agreement franchised by government. As stipulated by the newly-issued Administrative Procedure Law, citizens and other organizations can bring a lawsuit against administrative body if they think the latter illegally performs or doesn’t perform according to commitment, or illegally alternates or terminates agreements like the operating agreement franchised by government and expropriation compensation agreement of land and housing. It means that administrative agreement has been brought into the scope of accepting cases of administrative lawsuit. However, the existing laws on cases of operating agreement franchised by government are not perfect.In this paper, empirical analysis and standard analysis are taken as major research methods to analyze specific problems in relief for lawsuits of the operating agreement franchised by government in the Chinese context; solutions and perfecting suggestions will be proposed later. This paper adopts the perspective of executive law’s dogmatics, systematically illustrating the structured context of the law for two parties’ breach of contract, ranging from the remedies, unilateral alternation of cancellation right, and performance of rescission right of contract, burden of proof to liability for damage. It is expected to provide some suggestions for solving legal disputes of the operating agreement franchised by government.Theoretically, administrative subjects enjoy administrative prior rights in administrative agreements. However, from the perspective of the rights stipulated by laws, administrative prior rights are not stipulated in writing and the rights are only implicated in laws. Meanwhile, since its legal hierarchy is not consistent, law, administrative laws and regulations, rules and even administrative agreement can be autonomously appointed on the premise of legalization. It can be seen that the intensity of judicial review varies according to different protection intensities for administrative prior rights by law.According to the difference in legal hierarchy, and in terms of legal application, while reviewing whether administrative organs perform agreement as agreed by law or it is legal for them to change or terminate agreement unilaterally, the people’s court can refer to not only administrative legal norms, but also the civil legal norms not inconsistent with the mandatory provisions in the administrative law and administrative procedure law. Judges need to identify the nature of the legal acts of administrative subjects and relative people to determine a legal norm suitable for them. The administrative procedure law does not break through the traditional set pattern in the administrative and desirable administrative agreements. At present, a pluralistic mode should also be adopted for the processing of the problems related to administrative subjects ’ active litigation. First, it concerns consultation, reconciliation, conciliation and administrative reconsideration. Second, administrative subjects can launch administrative sanctions and even perform administrative coercive execution by administrative compulsory measures in accordance with law and legal regulations and contract terms. It is another controversial issue whether administrative subjects can file an administrative suit on grounds of governmental franchise agreement invalidation. This paper agrees with the negative view. When reviewing the cases of governmental franchise agreement, the people’s court should also examine legitimacy. For the problem on whether rationality can be involved, I hold a positive opinion. Since governmental franchise agreement is unique, in terms of the doctrine of liability fixation, the principle of liability for breach with civil attributes can be adopted as the case may be. As for the assignment of evidential burden, relative people should also bear an appropriate evidential burden, while it is not just the responsibility of administrative subjects to present evidence. As regards compensation mechanism, administrative compensation is combined with civil compensation. As to the enforcement of governmental franchise agreement, this paper holds that the basis of its enforcement should be improved by legislative means.