Research On The Administrative Prior Rights In The Administrative Agreement

With the rise of the idea of welfare state,the expansion of the administrative field of payment,and the deepening reform of government management system in our country,the administrative agreement system has born under this environment.The administrative agreement system is advantageous due to its trait of non-mandatory,cooperative and participatory,therefore it has gradually become an important administrative method in China.The coexistence of power and civil in administrative agreement is the biggest characteristic of its difference from civil contract and general Administrative Act.The public welfare which is carried by the administrative subject gives the administrative superior benefit right,but the appeal of private interests in the administrative agreement also makes the power appear more "weakened" than the traditional administrative.However,the new administrative is only relatively "weakened",and the essence of this privilege still remains as a mighty executive power.In the administrative agreement,the correct exercise of the right of administrative benefit is the successful result of the agreement,and it is also relating to the valid rights and interests of the related people.So that both side could achieve the balance with the highest quality,and it maximizes the superiority of the system.Nevertheless,it's still a long haul for us to achieve this kind of “best balance”.Although the administrative agreement has been widely used in practice,in theory,the concrete construction of administrative agreement system in our country is immature,making a lot of flaws in the process of running this power.The need of practice calls for the development of theory,in this paper,based on the theory of domestic and foreign research,taking the power factor inside the administrative agreement as the cut-in point,the author launches the Deep analysis of the comparative system.At the same time,the author puts forward the feasible thinking of standardizing the exercise of administrative benefit right.This article is divided into the following three sections:The first part: the existing concept "administrative agreement" is being reviewed and reflected,the traditional statement of "administrative agreement" or "administrative contract" is denied.The essence of administrative agreement is considered as an administrative act,therefore the new term "Agreement administrative Act" is recommended as the replacement of the traditional phrase.Then,the author affirms that the right of administrative advantage is the basis of power,it shows that the reasonable administrative advantages and benefits do not constitute the deprivation of individual rights,and further refining the specific characteristics of the power,analyzed the differences between the general administrative power and contractual rights.Lastly,through the discussion of administrative agreement and the public welfare,the legitimacy and necessity of getting the administrative benefits for the administrative subject in the administrative agreement is illustrated.Part Two: Firstly,through the form of chart to integrate the existing administrative advantages and benefits of China's legal provisions,the legislation of China's administrative advantages of the right to the specific manifestation of the rights has been defined.But,the analysis of the administrative advantages of the right has not been paid attention to the fact that the legislation.Secondly,the author integrates the typical cases about the administrative benefit right and makes a more in-depth analysis of the present situation of the executive benefit right exercised in our administrative agreement.Through combing the case and the controversial focus,analyzing the judicial subject to the administrative benefit right of the determination of the administrative benefit right in the Administrative agreement signing,implementation and judicial review of the existing problems in the process have revealed.The third part: The path analysis of the administrative superior benefit right in the normative administrative agreement.The author thinks that the first and best way to perfect administrative agreement is to restrict the administrative subject to the right of administrative benefit.First of all,based on the basis of our existing legal provisions and foreign advanced experience,this paper puts forward a kind of compulsory and flexible compatible way to divide the legal power and the contractual power,to clarify the boundary of power operation.Secondly,this paper aims to improve the exercise of administrative benefit right from the aspect of program control and puts forward the establishment of administrative agreement record examination system,hearing procedure and advance informing procedure.Meanwhile,it puts forward the judicial cognizance rule of perfecting the administrative benefit right,in order to respond the question of “public interest should surpass personal interest at all times”.At last,the author puts forward the non-litigation relief mode to establish the Administrative superior benefit right dispute.