The Study On The Regulation Of Administrative Prior Rights In Administrative Agreements

Administrative prior rights are an important part of the administrative agreement system.With the extensive use of administrative agreements in China's administrative practice,administrative prior rights appear more and more frequently in administrative activities and judicial trials.The administrative organ is not only the performer of an administrative agreement but also the manager of public affairs.Administrative prior rights dispute has emerged and entered the administrative litigation,how to regulate this "privilege" has become a practical problem.Administrative prior rights as a protection of the public interest,is necessarily needed,but also need to prevent the reckless acts of administrative organ from causing the public interest damage or relative person's interests damage.To achieve the administrative prior rights regulation,on the one hand need to recognize the nature of administrative prior rights.On the other hand,it needs to position its characteristics accurately.At present,the administrative litigation legitimacy review mode and the nature of administrative prior rights can not be well adapted.Administrative procedure regulation has the superiority to the control of the administrative discretion,so that the combination of the administrative procedure and the judicial review can realize the proper regulation of the administrative prior rights.This paper is divided into four parts,the main contents are summarized as follows:The first part mainly researched the nature of administrative prior rights and its characteristics in practice.Administrative prior rights are to ensure that the public interest can be achieved,its nature is similar to the administrative power.Theoretically,administrative prior rights generally include four types: command and supervision,unilateral change or terminate,enforcement,punishment.In practice,they must be used by law.The power created by agreement parties not belong to the administrative prior rights.The exercise of administrative prior rights shall be subject to external conditions,suit the public interest and give reasonable compensation,to make sure that administrative prior rights do no harm to the public interest and personal interests,balance the economic benefits of both parties simultaneously.The second part discussed the regulation route through the necessity of administrative prior rights regulation and the current situation of administrative prior rights regulation in our country.First,administrate by law One is the basic principles of administrative law in China;the second,administrative prior rights dispute has appeared in reality,administrative prior rights regulation has necessity in both level of theory and reality.As for the choice of regulatory mode,the legitimate review model is not a good way to achieve a comprehensive review to administrative prior rights.In the light of foreign experience,the administrative procedure has the superiority of restraining administrative prior rights,that is mainly appeared in the good restraining of procedure discretion and the flexibility of specific case.So we can use the administrative procedures and judicial review to regulate the administrative prior rights.The third part mainly analyzes the procedural regulation of administrative prior rights in our country.In procedural design,mainly choose negotiation and informing procedure as the basic procedures,the hearing process as the special procedures for the the procedural regulation.Requiring the exercise of administrative prior rights must be negotiated with the counterpart,and inform the content and relief measure before use administrative prior rights.Those administrative prior rights which have a significant impact to the relative rights and interests deserves a hearing.The administrative procedure itself has the effect of regulating the administrative prior rights,but also provides a way to procedural review for the judicial regulation So it is important to ensure procedural regulation and judicial regulation have an effective interaction.The fourth part mainly studies the judicial review and its rules under the current administrative litigation.Administrative litigation determine whether the administrative action is legal,it is an important system to regulate the administrative prior rights.Under the current administrative litigation system,the review of the administrative prior rights of the court can only be based on the review of the legitimacy,but it is necessary to use the new judgment type.This part uses cases to find out administrative prior rights of the review ideas and contents.At the same time,it made a brief analysis to the the assignment for the burden of proof,and the apply of the form of judgment.