Research On The Administrative Agreement Identification Standards

With the continuous development of social economy,government functions and management methods have changed,and administrative agreements have been born and reflected in all aspects of life.However,the theoretical and practical circles have not reached an agreement on the relevant contents of administrative agreements,which makes it difficult to legislate administrative agreements."The administrative litigation law" in 2014 first included in the scope of accepting cases the administrative agreements,and in the judicial interpretation of the concept of administrative agreement and type of regulation,this not only to a certain extent,unification on the cases of administrative agreement,more important is to make the administrative' agreement cases increased greatly,the scholars on the theory and practice study of administrative agreement more produce strong interest,and put forward relevant administrative protocols such as nature,type and identification standard's opinions or views.This article selects the Angle as the identification standard content of the administrative agreement,and hopes to put forward the comparison on the basis of absorbing the scholars' research on the administrative agreement.This paper consists of three parts,the introduction part is to introduce why the article chose.At same time,it points out that the administrative contract is not comprehensive in both legislation and theoretical research at present.On this basis,the article will sort out the contents of the administrative contract of relevant foreign countries or region,then point out the writing means to be adopted,and finally point out the innovation and shortcomings of the article.The body is composed of four parts.The first part(1)first introduce the meanings of "administrative contract "before and after the administrative procedure law of 2014 as well as the size of the scope,this range of changes is divided into the legislative level and the practical level,and in addition to several famous administrative contract listed in law,most is the administrative contract can abstract definition of certain law interpretation,on the regulation of administrative is still very fuzzy,then point to the practical scope of administrative contract is actually must be combined with administrative authority to make judgment,finally proposes the establishment of administrative contract system is of great significance for both theory and practice of administrative contract about learning.(2)The articles points out its shortcomings on the author's comments,such as "the subject theory" ignores the dual nature of the subject of the administrative organ in the market system,and how to define the public interest of the purpose content in the "double standards" theory.The second part,the author's perspective to the outside,the two major legal system of typical countries or regions.(1)in the customs law,English for the development of the administrative contract is based on "public utility privatization",on the basis of the administrative contract in do not distinguish between public law and private law but given a set of identification principle,by the general court of the British administrative contract dispute case.The United States of the administrative contract is a administrative or by specific legislation future.(2)in the continental legal system,administrative division theory of France is very abundant,taken in the field of judicial rulings by way of the identification process of the administrative contract:put forward that the core of its judgment is the administrative superiority and interest right,the conclusion of the number of line contracts in Germany is particularly comprehensive,the focus of the judgment is on the legal relationship,the Japanese administrative contract theory that the identification of the administrative contract includes the form and substance of two aspects,the identification of administrative contract in Taiwan is reflected" one case,one proposal"The third part back to the reality of our country,and points out that in the administrative contract on the legislative and judicial identification standard,the main way is local legislative law administrative contract,to explore the characteristics in the local legislation,administrative contract documents and in combination with the court's judicial judgment on the basis of the understanding of the administrative contract's performance in practice finally pointed out that the administrative contract identify problems reflected by the standard.Finally,the fourth part,which is also the innovation point of the article,after the discussion of the above three parts,put forward the identification standard mode that China's administrative contract should establish.