The Dilemma And Outlet Of Relief For Breach Of Administrative Agreement

In the new Administrative Procedure Law,the administrative counterpart considers that the administrative organ fails to perform the administrative agreement or illegally alters or rescinds the administrative agreement to be included in the scope of acceptance of administrative litigation.However,when the counterpart of the administrative agreement breaches the contract,how the administrative organ achieves relief is not stipulated by law.At present,the administrative right of preferential interest is not clear enough to solve the problem naturally;because of the public law nature of administrative agreement,it is not appropriate for administrative organs to initiate civil litigation,which is "difficult to digest";it is suspected of violating due process to jump out of the agreement to make administrative decision;and it is lack of"administrative organs" to apply for non-litigation administrative execution.Execution name".The new administrative procedural law regards administrative act as the object of judicial review instead of specific administrative act.For the first time,it clarifies the system of administrative agreement in the form of legislation.The new development of the theory of administrative act and administrative agreement conflicts with the current relief framework.The implementation of administrative agreement is the core of the system,and the legal remedy of administrative organs is justified and necessary.Comparing with foreign experience,France emphasizes and clarifies the administrative privileges of administrative organs.Germany fully respects the consensual nature of administrative agreements and allows two-way prosecution.At the same time,Germany and Taiwan have stipulated the system of "voluntary acceptance of execution",which is conducive to the efficiency of execution of administrative agreements.Anglo-American law system countries attach importance to double agreements.The equal status of the parties makes dispute resolution more flexible,while recognizing the differences between government contracts and private contracts.Considering the current situation of administrative litigation system in China,we should first consider using administrative agreement system's own administrative priority to solve the problem of administrative relief.We should make clear the nature,content and procedure of administrative priority through legislation to maintain the balance between public and private interests.At the same time,we can construct the system of "voluntary acceptance and enforcement" of administrative agreement in China.In the future,when conditions are ripe,administrative organs can be allowed to initiate administrative agreement dispute litigation to achieve relief.