Research On Trial Practices About Disputes Of The Administrative Agreement Effectiveness

The administrative agreement is explicitly included in the scope of accepting cases of administrative litigation.But as a result of administrative agreement containing both administrative and contract characteristics,it is worth of exploring how to carry out the applicable law in trial practice.This paper research judicial determination about effectiveness of administrative agreement by analyzing effective judicial documents.Agreements involved whether belongs to the category of the administrative agreement need to be identified in almost every case at the beginning.There are three distinguish standards,including contract purpose,the unequal status of contracting parties,and one party must be administrative subject.The administrative agreement disputes are different from general administrative litigation cases in terms of prosecution duration,burden of proof,litigation costs.Two years prosecution deadline stipulated in administrative procedure law or without being limited by the statute of limitations is applied to determine whether the sue is overdue in different court.The judge generally apply scheduled period of one year stipulated in civil law when plaintiff sue for cancelling the administrative agreement.For the distribution of burden of proof,the standard is 'who claim,who quote',which is different from the traditional standard in administrative law.And the court may obtain evidence based on authority.When contract need to continue to perform or involve damages,litigation costs apply the rate of civil property cases.In the aspect of substantive problems,the main basis to judge whether the administrative agreement is invalid is section 5 of article 52.But judges may extended the terms and conditions in some cases.Some of them do not distinguish between effective and administrative mandatory provisions.And it is difficult to identify effective mandatory provisions.Violation of the mandatory provisions of laws under the administrative rules may lead to invalid,because it may comply with the provisions of the contract law in section 4 of article 52.Lack of basis can also lead to the invalid,which is the result of conforming to "administrative procedural law" of article 75.Administrative agreements would be invalid for breaching of procedural law,especially the procedure of signing.There are some particular disputes of multistage administrative action.Some plaintiffs claim the agreement invalid because the former administrative action is illegal.Judges usually do not support the claim for the reason that it is beyond the scope of the present discussion.The way to confirm that the administrative agreement is effective in judicial practice is lack of invalid situations.Plaintiffs sue for canceling administrative agreement always based on fraud,coercion or unfair and lose most of them for beyond the scheduled period.Very few cases applied administrative compensation standards stipulated in"state compensation law".Judges always apply civil legal norms for damages,although the scope of the compensation of reliance interest is still out.And there exist liquidated damages clause and deposit penalties rules in the administrative agreement cases.And most cases involve the compensation of loss of interest.Damage compensation of interest for delayed performance may can't be counted,because the agreed deadline is unknown.Some judges apply administrative legal norms about the legal time limit 60 days for administrative organ to perform legal responsibilities,as the time limit to perform the agreement obligations.And there are a variety of results on the compensation standards of interest.Through combing effective written judgments,it is very common to apply civil law in administrative agreements,including procedure and entity aspects.As time goes on,more experience will be summarized during trial practice about administrative agreement.