Research On The Enforcement Of Administrative Agreement In Default Of The Relative Party

As far as the administrative agreement is concerned,it has the dual attributes of “administrative” and “contractual”.When the breach of contract by the administrative organ jeopardizes the interests of the administrative agreement,the counterpart of the administrative agreement may file an administrative lawsuit to protect its legitimate rights and interests.However,in the case of a breach of contract by the administrative agreement,what kind of relief channel the administrative organ should take,the existing law does not give a proper solution.This article is based on this topic,there are four aspects:Clarify relevant concepts and legislative status.An administrative agreement is an agreement between an administrative agency that has the administrative rights and obligations signed by the administrative agency to achieve the corresponding public interest,and it is essentially a “contractual administrative act”.The specific forms of breach of contract by the administrative agreement are mainly expected breach of contract,complete non-performance,delayed performance and improper performance.According to the existing laws,administrative regulations and regulations,there is still no feasible and effective solution in the current legislation.In practice,the remedies adopted by the administrative agreement against the defaulter are not unified.Analyze the status quo of practice and reflect on it.First of all,after the breach of contract by the administrative agreement,China mainly has two types of enforcement actions in the field of civil litigation and administrative law.The essence of the administrative agreement is to complete the administrative act by means of agreement.The civil litigation does not have the right to hear the administrative act,and the dispute of the same administrative agreement.The different litigation procedures applied to the subject of the prosecution will make the nature of the administrative agreement confuse again.The state of the Qing,thus negating the enforcement path in the field of civil litigation,applies the enforcement path in the field of administrative law.Secondly,because the non-litigation enforcement mode is more neutral and authoritative,it can effectively prevent the abuse of power by the administrative organs.Therefore,the non-litigation enforcement mode is applicable to the case where the administrative agreement defaults.However,due to the difference in the execution name,the operation in the judicial practice is confusing,and the same type of case has different enforcement methods.The focus of the implementation mode is whether the administrative agreement has the enforcement power.The administrative agreement does not of course have enforcement power.In the enforcement of administrative agreements,consideration should be given to the proportional protection of public interest and private benefits,focusing on the dual attributes of administrative agreements.Finally,the three non-litigation enforcement methods are analyzed and analyzed.Explore a proper and unified non-litigation enforcement method.Under the comparative law,we draw on the institutional norms of administrative agreements outside the domain.Based on the design of the voluntary acceptance of the enforcement system in Germany,the self-contracted non-litigation enforcement system under the circumstances of the default of the administrative agreement of China is established.That is to say,the parties agree in the agreement that the administrative agency may accept the non-litigation enforcement clause of the administrative agency in the event of default by the administrative agreement.This clause is essentially a format clause in the connotation,and is similar in form to the administrative agency's obligation to inform.The proposal of self-contracted non-litigation enforcement is of great significance in constructing relevant systems related to administrative agreements and administrative law practice: it ensures the smooth realization of the purpose of administrative agreements and prevents the abuse and abuse of the preferential rights in administrative agreements.The spirit of contract in the administrative agreement;unifying the enforcement path under the circumstances of the default of the administrative agreement,standardizing the enforcement procedures,guaranteeing the legitimate rights and interests of the enforced person;conforming to the constitutional principle of the people's sovereignty and administrative law at the level of institutional design The requirements of balance theory.In addition,at the theoretical level,self-contracting non-litigation enforcement provides an appropriate execution name,which is in line with the two-step process of administrative agreement,does not violate the statutory principle of administrative law,and is self-consistent with the existing administrative law theory logic;At the level,self-contracting non-litigation enforcement facilitates the administrative agreement to be aware of its own obligations,and to measure the risk cost of the administrative agreement in advance to improve administrative efficiency.Expand the implementation of the system of non-litigation enforcement of administrative agreements.At the legislative level,the provisions of the law applicable to non-litigation enforcement shall be stipulated when the administrative agreement is breached by the contract.On the practical level,the mode of “disassociation and separation” shall be applied in the enforcement process,and the people's court shall grant the execution ruling,and the administrative organ shall be responsible for the specific Organizational implementation;at the level of institutional support,optimize the review method to ensure that the review criteria are objective and clear,and appropriately expand the scope of the review.In the process of implementation,the legal rights of the person being executed are guaranteed through the hearing review and the application of the right of reconsideration to the person being executed.At present,in the case of a breach of contract by an administrative agreement,it is more appropriate to apply a non-litigation enforcement route.However,due to the chaotic operation in the non-litigation enforcement practice and the existing three types are flawed,on the basis of the existing non-litigation enforcement,the reference to the extraterritorial related system design proposes a self-contracted non-litigation enforcement method,in order to balance While the public interest and the administrative agreement are relative to the private interests of the people,the purpose of the administrative agreement is guaranteed.