Invalid Dual-Stage Review Of The Administrative Agreement

With the development of the government under the rule of law,the administrative body actively seeks flexibility in the change of functions and services.As a non-compulsory and efficient new administrative method,the administrative agreement is gradually applied to the actual administrative activities.In particular,in recent years,administrative agreements have been appearing everywhere.The legal disputes and disagreements arising from the rapid development of administrative practices have prompted researchers to speed up their understanding of administrative agreements and actively construct administrative agreements that are in accordance with the current form.s frame.The Administrative Litigation Law regulates the administrative agreement as the scope of review of the administrative litigation,which is of great significance.At the same time,its judicial interpretation clearly clarifies the review of specific issues of the administrative agreement,and in particular,the examination responsibilities of the validity issue.However,there are still many opinions about the legal nature of administrative agreements.Whether it is the immaturity of relevant theories of administrative agreements or the inadequacy of legal norms,it will undoubtedly cause problems that are difficult to apply in judicial practice.Looking at the relevant legal studies in China,although they all have the effect of administrative agreements,most of them are short,simple and slightly obsolete,and are not enough to apply to the actual judicial case review,especially for the prevention of invalid administrative agreements.The theory is even more rare.German scholar Hartmut.Mao Liner thinks: “The main topic of modern times is not the issue of lawfulness in the principle of administrative contract,but the refinement of the theory of administrative contract,especially the legal elements,legal forms,and consequences of violations of the administrative contract,indicating that these issues are administrative The premise that contracts are effectively applied in practice." The academic community has also been committed to the study of relevant theories of administrative agreements,but most of them have rarely been involved in the study of the basic concepts and applicable legal rules and their effectiveness.In this context,this paper focuses on the in-depth study of the invalidity of the effectiveness of administrative agreements.The reason is that in the judicial practice,the invalidity of the administrative agreement has been placed in a more important position.It is obvious that the effectiveness of the administrative agreement does not highlight the boundaryof effectiveness.Therefore,the author chose invalidity as the starting point and the end result.Considering the practical thinking triggered by the case of the validity of the administrative agreement as the starting point,and recalling the qualitative nature of the administrative agreement itself,the German double-level theory was introduced here.The author believes that applying the criteria of the double-stage review to solve the problem of the effectiveness of the administrative agreement can Change the chaos of the effectiveness review of the current administrative agreement.This article is mainly divided into three departments,as follows:The first part is an analysis of representative typical cases,he "practices of repressing" in administrative agreement cases shows that practical application in the field of administrative law is ahead of legal norms.Although there is no legal recognition and regulation of administrative agreements and effectiveness,many administrative agreement disputes that have emerged in reality have entered the court's judicial decisions.After the legal status of the administrative agreement has been determined,a certain number of administrative agreement precedents have been accumulated,and the trial authorities have also formed the basic idea for the determination of the effectiveness of the administrative agreement.However,relevant regulations and theories still fail to answer administrative and judicial decisions.Agreement qualitative dilemmas.The second part is to rethink the administrative agreement as a starting point and reflect on the confusion of the current theory of the administrative agreement.The fact that the definition of the administrative agreement has not yet reached a consensus is a source of difficulty for the problem of validity.Whether it is "subject theory","purpose theory" or "target theory," each has its own priorities.In this regard,the author believes that the new perspective of administrative agreement theory can be opened up from the double-level theory of German administrative law.In fact,the theory of double-order has also been tentatively applied in China's special administrative agreements,such as franchise agreements,government procurement contracts,and environmental public service franchise agreements.Whether the double-order theory can be universally applied in administrative agreements,the author thinks it is feasible.Based on this,we have made a new understanding of the administrative agreement,which is specifically divided into broad and narrow administrative agreements.Broadly speaking,administrative agreements are the concept of collective groups,and narrow sense is the concept of subgroups.The narrowly defined administrative agreementrefers to the text of the agreement signed by both parties,and the entire administrative act related to the administrative agreement is a broad concept of administrative agreement.The narrow administrative agreement is used to logically divide points and is classified as part of the pre-administrative action.And post-administration agreements in some stages.This division also includes logical divisions,not entirely before and after time.The administrative behavior stage refers to the administrative behavior of an administrative agency that has a unilateral nature.It does not include factors other than the will of the administrative agency,including administrative decisions,administrative licenses,and administrative announcements,highlighting the mandatory administrative power as the backing administrative behavior characteristic.The administrative agreement phase includes the signing and performance of the agreement,and the behavioral attributes embodied in it have private will.The third part is the application of the two-stage theory of administrative agreements in terms of effectiveness.After the double-level theory of Germany categorizes the administrative agreement,the validity problem can be divided and determined ineffective in the two stages before and after.The first is to clarify the influence of the effectiveness of the previous stage and the effectiveness of the latter stage,that is,the illegality or invalidity of the behavior of the previous stage will lead to the invalidation of the administrative agreement in the later stage.Based on this,the two-stage review criteria for the effectiveness of the administrative agreement will be clear.For the previous phase,the invalidity determination shall be handled in accordance with the provisions of administrative law,and the invalidation determination at the later stage shall be handled in accordance with the provisions of the civil law.