A Study On The Judicial Review Of The Administrative Organs' Illegal Alteration And Dissolution Of The Government's Franchising Agreement

Since the 1990 s,our country began to try the application of government franchise project financing,especially BOT.After more than two decades of practice,the relevant laws and regulations in our country have been greatly developed and perfected,which has greatly promoted the practice of project financing by government franchisees.However,on the whole,there are some problems in our government franchise project financing,such as imperfect legal norms,vague legal nature of government franchise agreements,lack of role of government supervisory authority,illegal change of administrative organs and dissolution of government franchise agreements.Moreover,since the new Administrative Procedure Law has changed the administrative organs illegally and released the government franchise agreement into the scope of acceptance,the people's court also urgently needs to fully grasp the relevant theories of the government franchise agreement.Since there is no legal norms governing common law franchise agreements in Anglo-American legal system countries,only the legal norms of ordinary civil contracts can be applied to adjust government franchise agreements.However,as a civil law system,Germany and France differ from each other in that they have laws and regulations that specifically regulate public-law contracts.Therefore,legal disputes over government franchise agreements are regulated by administrative laws and regulations.In view of the fact that the legal norms and related systems in our country have the color of the civil law system,it is necessary to make an in-depth investigation of the judicial review system of the franchise agreement between France and Germany in order to build and perfect the judicial review system of the government franchise agreement in our country.Government franchise agreement refers to the administrative body based on administrative,social or economic needs,through bidding,auction and other fair competition,select qualified operators,and signed on the government franchise deadline,performance bond,such as the termination of change the content of the administrative agreement.At present,when studying the government franchise agreement,the scholars of Chinese and western administrative law put forward three different theories about the legal nature of the government franchise agreement,namely "the nature of public law" and "the theory of private law" and the "gray zone".Compared with the general administrative agreement,the main characteristics of the government franchise agreement are reflected in the following three aspects: Firstly,the government franchise agreement must stipulate the operating period of the government franchise.Secondly,the government franchise agreement must stipulate the price terms of public goods or public services.Thirdly,the ownership of the subject matter of the government franchise agreement belongs to the government.During the performance of the government franchise agreement,the administrative organ shall enjoy the power of unilaterally changing and lifting the terms of the government franchise agreement based on the needs of the public interest and other statutory provisions.The core content of the conclusion of the government franchise agreement is that the administrative organ applies the administrative discretion to grant the franchise of the authorized operator.And the administrative discretion and the franchise of the government are both an administrative power,and involve with the authorized operators the rights and obligations,so the need for judicial intervention in government franchise agreements.The people's court should first conduct a judicial review on the legal effect of the government franchise agreement when hearing the case of an illegal change in the administrative organ or lifting the government franchise agreement.Only after the judicial review confirms that the government franchise agreement is valid and legally valid,the people's court can go further judicial review of the legality of changes in the executive authorities and lifting of government franchise agreements.The government franchise agreement is the result of the agreement between the parties to the contract in accordance with the law and the result of the administrative authority exercising administrative discretion.Therefore,the administrative organ may apply the judicial mediation procedure in case of illegal alteration or dissolution of the government franchise agreement.The government franchise agreement belongs to the administrative agreement is a kind of administrative behavior of both sides,and the administrative organs unilaterally modify or terminate the franchise agreement act is unilateral administrative act,so the people's court should apply to administrative law to recognize the legitimacy of the modification and termination of government franchise agreement unilateral administrative organs.Only when there is no stipulation in the administrative law norms can we apply the civil law norms to determine the change of the administrative organ and lift the legitimacy of the government franchise agreement.In the meantime,the people's court shall handle laws and regulations and make reference to the rules when handling cases of illegal alteration or dissolution of the government franchise agreement by administrative organs.For the following normative documents,the people's court may refer to the application or review for application.However,if the people's court considers that the normative documents under the rules and the legal norms of the higher-level ones are inconsistent with each other,reference shall not be made to the applicable or vetted legal normative documents below the applicable rules.Where an administrative organ illegally changes or decides the method of adjudication of a case of a government franchise agreement,the people's court shall make its choice based on the plaintiff's claims and the actual circumstances of the case,rather than on the order decided by the people's court.However,people's courts need to start trial of cases of government franchise agreements in accordance with the way of judgments prescribed by law and specific trial procedures.In view of the illegal change of the administrative organ and the lifting of the government franchise agreement,the author proposes the following five rules and regulations: Firstly,improve the system of administrative litigation;Secondly,promote the standardization and formatting of government franchise agreements;Thirdly,strengthen the higher authorities;Fourthly,strengthen the administrative accountability mechanism;Fifthly,construct the risk management mechanism of the government franchise agreement.