The Applicable Rules Of Administrative Agreements Litigation

Administrative Litigation Law of the People's Republic of China is implemented in 2015,it incorporated administrative agreement into the scope of administrative litigation,the dispute between the scholars of civil law and administrative law for the existence of the administrative agreement and the nature of the dispute is finally settled.According to the article 14 of Interpretation of the Supreme People's Court on Several Issues concerning the Application of the Administrative Litigation Law of the People's Republic of China," In examining whether an administrative agency has performed an agreement according to the law or as agreed upon or whether an administrative agency's unilateral modification or rescission of an agreement is legal,the people's court may,while applying legislation on government administration,apply civil legislation provided that the compulsory provisions of the administrative law and the Administrative Litigation Law are not violated."Legislation on government administration mainly restrict the unilateral administrative act,and the administrative agreement,as the administrative action of both parties,is hardly applicable to the legislation on government administration.Civil legislation,as a constraint of "consensual",how to apply it to the administrative agreement,which set off a new round of discussion in the academic circles,than Supplementary application and Simultaneous application appeared.Judge of the Supreme People's court,who is responsible for drafting judicial interpretations,argues that the applicable rules of administrative agreements litigation is Supplementary application,that means,the priority of the application of legislation on government administration,in the absence of legislation on government administration,the application of civil legislation.However,the application of judicial practice is different from the applicable rules.Such a situation exists in practice,in the absence of legislation on government administration,the court applies civil legislation and the reasoning of civil legislation on the referee reason.However,there is no applicable civil legislation in the referee basis.Why do theory and practice have different results?According to the rules and academic analysis,in the absences of specific legislation on government administration for the application,the court can also use the relevant principles of administrative law to resolve the dispute,civil legislation do not necessarily need.And based on the nature of the administrative agreement and the legislative purpose of administrative litigation law,civil legislation can not be perfectly applied in the disputes of administrative agreement,the scope and extent of its application in the administrative agreement should also be defined through the accumulation in the administrative agreement of practical experience.Perhaps this is the reason why the administrative agreement does not apply to civil legislation in the practice of judicial review.Appropriate application rules include two parts:not according to the law apply to the legislation on government administration.Not in accordance with the agreed performance and unilateral change,the lifting of the agreement to aply supplementary application.In supplementary application,it should be clearly pointed out that the priority of the application of legislation on government administration,including the basic principles of administrative law.At the same time,the scope of application of civil legislation should be limited or restricted.