Research On The Cognizance Standard Of Invalidation Of Administrative Agreement

The determination of the invalidity of the administrative agreement is an unavoidable problem in resolving the dispute of the administrative agreement.For the recognition of the invalidity of the administrative agreement,there is a lack of specialized research in theory,more focus on the identification of administrative agreements and the application of law,and the lack of special provisions on legislation,at the same time,the court has arbitrariness in the application of Article 52 of the Contract Law of the People's Republic of China and Article 75 of the Administrative Procedure Law of the People's Republic of China,there is a lack of unity of thinking and standards.Therefore,it is helpful to build a perfect theory of validity of administrative agreement,to solve the dispute of administrative agreement,and to safeguard the legitimate rights and interests of both parties.This article is divided into four parts to discuss the standard of determining the invalidity of administrative agreement.The first part : through the academic point of view and the case of the path choice about the administrative agreement invalid cognizance standard in theory and trial practice,the main performance is the single mode and the mixed mode the two standards of identification.The former includes the single rule of invalidity of civil contract and the standard of invalidity of traditional administrative act.The latter includes the priority of the rule of invalidity of civil contract and the rule of invalidity of administrative act effective mixed identificationcriteria.The second part : through the analysis of the practice of invoking civil contract invalid rules to identify the invalidity of the administrative agreement,that is,on the issue of the standard of invalidation of administrative agreement,on the one hand,we misunderstand the legal nature of the administrative agreement,and confuse the administrative agreement with the civil contract;on the other hand,it deliberately complicates the simple problem,even ignores the essential characteristics of the administrative agreement,and regards it as a tool for the competition between the people and the people,which is not conducive to the correct and effective solution of administrative disputes.Even if it recognizes the applicability of civil contract invalid rules in the field of administrative agreement,through the specific application of invalid rules,the result is that part of it is not compatible with the administrative agreement must be removed,a part can still be properly settled in the field of administrative law,even if it is through appropriate transformation.With the adaptability change of the principle of administration according to law and the standard application of administrative discretion,the cognizance of invalid administrative agreement can be included in the category of invalid administrative act,which requires no civil law rules help.The third part : on the basis of the previous paper,based on the relation and difference between the administrative agreement and the general administrative act,it holds that the cognizance of the invalidity of the administrative agreement should be in accordance with the rules of invalid administrative act and the administrative agreement standard for combining invalid special rules.The administrative legal attribute of administrative agreement decides that the invalidity of administrative agreement should follow the rule of invalidity of administrative act,but at the same time the formal and substantive differences between administrative agreement and administrative act decide there are special rules on invalid identification.The forth part : on the basis of cognizance of the invalidity of administrative agreement and the standard of invalid special rules of administrative agreement,the invalid rules of administrative act at home and abroad should be adopted for reference,the value orientation and basic cognizance principle of " significant and obvious illegal " are defined,and the express invalidity subject stipulated in Article 75 of the AdministrativeProcedure Law is combined with administrative agreement,it also expounds the specific application of the special rules on the invalidation of administrative agreement,and provides a practical and feasible method for the determination of the invalidity of administrative agreement.In addition,as a supplementary recognition standard,the special consequences of invalidity of administrative agreement are taken into consideration,taking into account public interests and private interests,which can be applied in special circumstances handle.The last part is the conclusion of this paper.On the basis of the previous discussion,this part summarizes the cognizance standard of invalid administrative agreement,summarizes the specific situation of invalid administrative agreement,and hopes to provide a point for theoretical research and judicial practice help.