Study On The Coercive Execution Of Counterpart's Duty Within The Administrative Agreement

Administrative agreement doesn't have a long history in the field of China's administrative law,but as a new means of the administration,it has occupied an extremely important role in the public administration.However,administrative agreement is a contract with particularity,which is both administrative and contractual.Therefore,many problems have emerged during the exploration of administrative agreement's law-guaranty,among which accountability mechanisms for counterpart is one demanding the most concern.At present,there are two schemes.One such solution is to petition the civil court to fix the problem.And the other is to apply for the unilateral administrative actions on its own,then both sides can settle the dispute in the administrative proceedings filed by counterpart.But both schemes are propped up from theory insufficiently.Meanwhile,they have also exposed obvious shortcomings in practice,thus the two schemes shouldn't be applied anymore.On November 2014,the NPC Standing Committee revised The Law of China's administrative Litigation,which was put into action on May 2015.The official legal status of administrative agreement is acknowledged by the law.On that basis,the administrative agreement will be put into use more and more widely.Therefore,much attention should be paid to accountability mechanisms for counterpart.Under such circumstances,it is particularly important to build a new mechanism.The coercive execution of counterpart's duty is the optimal choice within the administrative agreement.Actually,such a system has been existing internationally for many years.In France,the administrative subject has the power to directly execute the administrative agreement.Germany and China's Taiwan practice compound coercive execution of administrative and judicial organs.The coercive execution of counterpart's duty in the administrative agreement has its existent basis in China.The Public Interest Theory,the Administration Prior Rights Theory and the Principle of Administrative Efficiency provide important theoretical basis for it.The Article 97 of the Law of China's administrative Litigation is its legal merit.The agreement which is revised by administrative organs can't be enforced,but when the administrative subject enters into agreement with administrative counterpart,it can be enforced.The system should evolve independently of the Law of China's administrative Coercive Execution.In terms of the path of coercive execution,the administrative nature of administrative agreement is more highlighted as well as the administrative efficiency in China's administrative laws,meanwhile,China's administrative laws are constrained deeply by China's legal traditions and factual systems.Therefore,all or part of litigation shall be ruled out,and the direct coercive execution,which is based on non-appointed instant coerciveness,shall be selected.The keystone of the paper is to discuss the configuration of the power about the coercive execution of counterpart's duty.It is an inevitable trend that regards efficiency as the main value,and Chooses the model which administrative subject plays a leading role within.More specifically,when administrative agreement is revised by administrative organs,assignsthe power to the court.When the administrative subject enters into agreement with administrative counterpart,the present article attempts to propose two criteria to divide authority over coercive execution,these criteria are the type of default and the extent of the public influence for defaulting.