On The Judicial Recognition Standards Of Administrative Agreements

Since the Administrative Agreement was included in the scope of the case in the latest “Administrative Litigation Law” in 2014,the administrative agreements have been developed in a blow-out manner,from less than one thousand to more than 10,000 pieces.The 2015 Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the “Administrative Procedure Law of the People's Republic of China”(has been repealed on February 8,2018)also specifically explained the administrative agreement.However,the latest judicial interpretation in 2018 has not only failed to make Explaining and even abolishing the contents of the previous explanations.It also reflects,to a certain extent,that the previous interpretation was not reasonable.In the field of administrative agreements in our country,practice is more advanced than theory,which directly leads to more disputes.At this time,the identification standards in judicial practice are of crucial importance.Therefore,this paper uses the empirical method of group case study to summarize the standards for the determination of administrative agreements in the judicial practice since the administrative agreement has entered the scope of the case.Make it clear and orderly,and to formulate a set of practical standards for judicial identification.From the implementation of the Administrative Procedure Law in May 1,2015,we have reviewed the jurisprudence of the people's courts at all levels.On April 2nd,2018,in the web site of China's referee documents,I searched cases by the cases? cause of “administrative agreement” and the type of administrative case,from May 1,2015 to now.Three were a total of 2243 cases,of which 768 were valid;I searched cases by the cases? cause of “administrative agreement” and the type of civil cases,from May 1,2015 to now.Three were a total of 1352 cases,of which 243 were valid In total,there are 1011 total valid cases(effective cases refer to cases where the nature of the administrative agreement is confirmed).In addition,because of the change in the name of the administrative agreement,and content of the article that it proves the judicial recognition standard of the administrative agreement,it will no longer sort out the cases of “administrative contract”.The valid cases are divided into affirmative and negative cases according to whether they are recognized as administrative agreements.From the valid cases,nine criteria are identified:(1)subject;(2)purpose(public interest or administrative purposes);(3)consensus;(4)statutory duties;(5)rights And obligations in Administrative Law;(6)legal status;(7)administrative superiority;(8)property of legal relations;(9)legal regulations.It is difficult for courts at all levels to form a reasonable and orderly certification standards system because they adopt one or two or more certification standards and it is difficult.These 9 criteria of identification are more than the seven standards drawn by Prof.Bifeng Ye?s empirical research on 154 cases in 2014,and they are ?consensus? and ?legal relations?.That the consensus between the two parties is the key of distinguishing unilateral administrative actions with administrative agreements,is not almost opposed by other persons.The property of legal relations has always existed in the theoretical circle.Before the administrative litigation law was implemented in 2015,it was hardly used in the jurisprudence.This time it began to appear as a standard of recognition,and it also shows that the time for its application in practice has gradually matured.This article divides the criteria that appear in the above cases into five categories according to their content and nature: consensus,legal regulations,subject(including statutory duties),purpose,property of legal relations(including rights and obligations in Administrative Law / legal status / administrative superiority).Because consensus and legal regulations are not controversial,this article has not been discussed again.This article focuses on the three major criteria of the subject,purpose and property of legal relations.Focus on how to determine the administrative agreement and carry out the demonstration,and make judgments on the merits of each criterion.Therefore,in this paper,we use the empirical method to analyze the criteria of the case and carry out demonstration analysis.According to our country's actual situation,we propose to provide the most suitable criteria for the standard of administrative agreements.This article through a large number of cases to sum up the judiciary standards of the emergence of the stage of the factors and to analysis the advantages and disadvantages,selects the appropriate standards for the identification of China's administrative agreements by the combination of formal identification standards and substantive recognition standards.The proposed order of identification is as follows: 1.A consensus(differ from unilateral administrative actions);2.Formal standards(laws and regulations + administrative subject + statutory duties);3.Substantive standards(legal relationship + goal elements).