The Judicial Application Of Administrative Contract

As an important means and way of modern administration,administrative agreement has been widely used in practice.The exploration of administrative agreement begins with the contracting of land and state-owned enterprises in industrial reform,and develops to the field of public infrastructure construction which is widely used,and has abundant practical experience.The widespread application also brings in the dispute of the administrative agreement,in the face of the administrative agreement case into the administrative litigation time is short,the relevant legal provisions of the administrative agreement are not clear enough,the relevant practical experience is not sufficient.In this case,the discussion on the judicial application of administrative agreement is necessary.The premise of judicial application of administrative agreement is to define the administrative agreement which is to be protected in the relevant legislation,and according to the relevant legislation,it can be summed up "to achieve the goal of public interest or administrative management";"Signing the terms of reference of administrative agreement within the scope of the statutory duty," the principal criterion signed between the administrative organ and the citizen,legal person or other organization,"the standard of negotiation establishment","the content of the relation of right and obligation in administrative law" The content standard and the administrative organ enjoys the standard of the administrative superior benefit right this sixth standard.Agreements with the above six standards can be defined as administrative agreements.The review of administrative agreements can be conducted in both legality and reasonable scrutiny,but the reasonableness review is limited to the reasonableness review.In addition,contractual reviews could also be conducted on administrative agreements.From the standpoint of the perspective,such contractual reviews include a review of the conduct of the Agreement and a review of the conduct of the implementation Agreement.However,the review of the conduct of agreements should be directed primarily at the review of procedural acts and forms.From the point of view,the administrative procedural law and its judicial interpretation stipulate only the review of the performance of administrative agreement,and no relevant provisions are made for the conduct of the Agreement.In the rules of evidence of administrative agreement litigation,when the burden of proof is allocated,the distribution of the legality and rationality of administrative agreement is adopted by "the defendant's proof as the principle,with the exception of the plaintiff," and the contractual question of the administrative agreement,in view of its contractual nature,the use of "who advocate,who proof" distribution.In the standard of proof,the distribution of burden of proof will relate to the standard of proof,and the standard of proving the burden of proof is higher,and the proof standard of the burden of proof is lower.The referee of administrative agreement should strictly follow the six kinds of judgments stipulated by the new law,in the course of the referee to safeguard the relative person's lawful right,strictly examine the administrative organ to abide by the pledge to guide the value,provide a benign development environment for the development of administrative agreement.