The Execution Path And Reformation Of The Relative Person Of Administrative Agreement

Administrative agreement is a new type of special contract in China.Through the special form of administrative agreement,the other party can directly participate in or implement administrative functions in a positive way of rights.This approach tends to give the counterpart a sense of acceptance and approval more easily.With the adoption of the new administrative procedure law of the People's Republic of China in 2014 and the formal implementation of the judicial interpretation in 2018,the scope of accepting cases of administrative litigation has changed accordingly.According to the content of relevant laws and regulations,disputes arising from administrative agreements are legally classified as the scope of cases,that is,administrative agreements can be sued.In other words,if the administrative subject fails to fulfill the content of the agreement established by both parties,the other party may bring an administrative lawsuit to the competent court to protect its own rights and interests.However,this regulation neglects the bi-directional characteristics of administrative agreement,and fails to solve the problem of how to enforce it when the other party fails to fulfill its agreed obligations.Other relevant laws and regulations also fail to make clear and specific provisions on this situation.By analyzing and summarizing all kinds of cases searched and summarized by the author,this paper obtains three compulsory execution paths adopted in the current judicial practice when the other party fails to complete the contents agreed upon in the agreement or defects.It can be seen that before or after the revision of the newly implemented procedural law,all kinds of compulsory enforcement measures against the counterpart of the agreement are relatively chaotic,and there are no unified legislative provisions.In addition,through case analysis,judicial practice or theoretical evaluation,it can be seen that the three current approaches also show some defects in the practice process.Therefore,by detailed analysis of the sources and nature of administrative agreements in China and other countries,and the distinction between them and ordinary civil contracts,the characteristics are summarized,and the good experience outside the region is used for reference.The author thinks that according to the current situation of our country,it is most appropriate for the other party to declare that the provision of voluntary acceptance of compulsory execution is introduced into the agreement established by both parties.Only by clarifying the nature and particularity of the administrative agreement,distinguishing the agreement from the ordinary civil contract established between the equal subject and the administrative act unilaterally made by the administrative organ,can the best solution be found for the compulsory execution by the counterpart of the agreement in violation of the agreement.This article is divided into four parts,respectively from the administrative agreement path of the other party to enforce the choice of the premise,the present situation,the present situation of the defects and the renovation of the current path argument five aspects,this paper tries to use the method of data statistics,case analysis way of looking for the other party to enforce the current path,document analysis,and combined with case law analysis indicates that the path of the status quo defects,and combining the extraterritorial experience for compulsory execution path transformation in China are put forward and its supplement and perfect.The first part states the research background of this paper,and puts forward the core issues for the current administrative law system in China.It also discusses the value or significance of this study.In addition,the core problem of the unidirectional structure let us on the current administrative procedure law has a general understanding,also helps us targeted to solve the problem of this article to think.And from this,into the concrete research and analysis.The second part mainly analyzes the choice premise of the enforcement path of the counterpart of the administrative agreement,discusses the nature of the administrative agreement,and summarizes the viewpoints of the scholars.Furthermore,the basic situation of administrative agreement is understood by combining with the outline of administrative agreement.This paper expounds the characteristics of the administrative agreement and analyzes the factors in terms of the factors,so as to explain the difference between the administrative agreement and the civil contract.In addition,through the analysis of the relationship of administrative agreement with administrative action,the new "administrative procedural law" article ninety-seven and article 34 the administrative enforcement act specified in the enforcement of the object.It is used to illustrate the defect of the path that the administrative authority or the legal institution chooses to enforce,and provide a strong basis.The third part is the research on the current situation of the enforcement path of the counterpart of China's administrative agreement.First of all,to look into the reality of judicial practice,this paper collected a lot of cases about administrative agreement,abandon the administrative organ as the defendant's case,collected a total of 57 of an administrative organ as the plaintiff's case.According to the results of data statistics and the analysis of case cases,it can be found that the current court tries to deal with the non-performance of the content of the agreement through three ways.Secondly,through the typical cases of each path chosen by the author,the reasons for selecting the path of the administrative organ or the court,and the opinions of other scholars or experts,are explained.And the reasons for these different opinions are studied,which lays the foundation for the reform Suggestions in the system.The fourth part is to reflect on the present situation of the path summarized in the third part.Targeted analysis of each path out of the court to support a reason to use the path,at the same time,through all kinds of literature search,academic monographs,and in my own thinking,to corresponding counter stated reason,pointed out that each path or are part of the defects and to provide corresponding basis.Finally,through the practical experience analysis of the execution path of the relative person of the administrative agreement in the foreign countries,it lays the foundation for the reform of the enforcement path of the counterpart of China's administrative agreement in the latter chapter.