Research On The Standards Of Invalid Administrative Agreement

Based on the new special judicial interpretation,this paper takes the connection between the dual nature of administrative agreement and the standard of invalidation as the main line.Through the systematic analysis of article 12 of the special Judicial interpretation of administrative Agreement,the author analyzes the legislative loopholes and contradictions existing in the judicial interpretation itself.This paper analyzes and studies from two aspects.First,the double invalid identification standard is applicable to the administrative agreement;The second is the influence of the invalid identification standard on the post-identification processing.Through the analysis of these two aspects,this paper points out four problems related to the identification standard of invalid administrative agreement.First,in paragraph 1,Article 12 of judicial Interpretation of Administrative Agreement,there may be some problems in directly applying the identification standard of invalid administrative act to administrative agreement.Second,in paragraph 2 of Article 12 of the Judicial Interpretation of Administrative Agreements,the provisions on the application of civil legal norms are somewhat vague and general.The provisions do not specify which civil legal norms can be applied,whether the application is reasonable and how to improve it.Thirdly,in the third paragraph of article 12 of the Judicial Interpretation of administrative agreements,the "supplement and correction" of invalid administrative agreements has the disadvantage of undermining the double recognition standard,and measures should be taken to restrict it.Fourth,Article 78 of the Administrative Procedure Law stipulates three modes of judgment:continuance of the judgment,adoption of remedial measures,and compensation judgment.But in practice,it is obvious that the three effective methods of legal adjudication cannot meet the practical needs of administrative agreement disputes Therefore,it is necessary to discuss and analyze the practical cases,broaden the judgment mode of administrative agreement dispute cases,so as to fill the shortage of the judgment mode when invalid administrative agreement appears in the practice,and analyze the influence of different recognition standards on the judgment mode.This paper aims to systematize the relevant systems of invalid identification standards through the discussion and analysis of the above four problems and systematic research.First of all,as for the"subject performing administrative act does not have the qualification of administrative subject" mentioned in the first paragraph of article 12,this paper believes that the invalid situation should be applied to the administrative agreement more in accordance with the"legal scope of functions and powers" of the administrative subject,rather than the identity of the administrative subject.As for "the content of the administrative act is objectively impossible to be implemented",since the contents concluded in the administrative agreement are the result of negotiation between both parties,it is very difficult to be implemented in fact,and it may not be necessary to take it as invalid.For "other material and obvious illegal situations",it is necessary to further standardize the understanding of "material and obvious",and add the invalid situations caused by special procedures of administrative agreement into the invalid standard.In addition,in view of the particularity of administrative agreement,this paper proposes to use Germany's "prohibition of improper connection principle" for reference in order to better perfect the invalid identification standard.First of all,as for the invalidity of the applicable administrative act referred to in the first paragraph of article 12,"the implementer of the administrative act does not have the qualification of administrative subject",this paper believes that the invalidity of the situation applied to the administrative agreement should be more targeted at the "legal scope of functions and powers" of the administrative subject,rather than the identity of the administrative subject.As for "the content of the administrative act is objectively impossible to be implemented",since the contents concluded in the administrative agreement are the result of negotiation between both parties,it is very difficult to have the situation that is actually impossible to be implemented,and it may not be necessary to take it as invalid.For"other material and obvious illegal circumstances",it is necessary to further standardize the understanding of "material and obvious",and meanwhile add the invalid circumstances caused by special procedures of administrative agreement into the invalid standard.In addition,in view of the particularity of administrative agreement,this paper proposes to use Germany's "prohibition of improper connection principle" for reference in order to better perfect the invalid identification standard.Again,the "amendment to the invalid administrative agreement" provided for in paragraph 3 of article 12.Because this regulation has the disadvantage of "overhead" invalid administrative agreement identification standard,it will also become the legal loophole that the administrative subject abuses power in practice This paper argues that it is necessary to analyze the system of "supplement and correction"and restrict its application.Include concretely:first,to the procedural invalid case that appears in contracting process,can apply "complement is correct";Second,for the invalidity that harms national interests and social public interests,if the invalidity is eliminated at this time,the loss of public interests can be recovered and the performance of both parties can be put back on the normal track.For the sake of public interests,"correction" can be applied;Third,the administrative agreement involved does have the significance of reconfirming validity.Secondly,for the referred to in article 12,paragraph 2,the civil law,this paper argues that mainly include the "contract law" article 52 of the five kinds of situations,format the ineffective provision is invalid in case,no capacity for civil conduct of adults to implement the behavior of the invalid situation,disgraceful consideration against invalid and caused by the contracting form is invalid.And the above invalid circumstances can not be directly cited,should be combined with the particularity of the administrative agreement,make appropriate adaptations or modifications.Again,the "amendment to the invalid administrative agreement" provided for in paragraph 3 of article 12.Because this regulation has the disadvantage of "overhead" invalid administrative agreement identification standard,it will also become the legal loophole that the administrative subject abuses power in practice.This paper argues that it is necessary to analyze the system of "supplement and correction" and restrict its application.Include concretely:first,to the procedural invalid case that appears in contracting process,can apply"complement is correct";Secondly,for the invalidity that harms the national interests and social public interests,if the invalidity is eliminated at this time,the loss of public interests can be recovered and the performance of both parties can be put back on the normal track.For the sake of public interests,"correction" can be applied;Thirdly,it is necessary to reconfirm the validity of the invalid administrative agreement involved.Finally,in the case of invalidation of administrative agreement,this paper believes that it is necessary to add the judgment of dismissal of suit request,partial invalidation judgment and confirmation of invalidation judgment.In addition,according to the different applicable invalidation standards,the court chooses different judgment methods through discretion.In particular,for the purpose of public service and administration of administrative agreement,this paper argues that in practice,the invalidation of part should be enlarged appropriately according to the different invalidation situations in the double recognition standard,while the invalidation of part should be reduced.At the same time,in the confirmation of invalid judgment,when the return of property or restoration of the original state will cause great damage to the national interests and social public interests,it is necessary to cite the case judgment in the annulment,but at the same time,the applicable conditions of the corresponding restrictions should be observed.