On The Identification Standard Of Administrative Agreement

After the revision of the Administrative Procedure Law,the legal status of administrative agreements was recognized,and the number of administrative agreement cases accepted by courts at all levels increased rapidly.Although the Supreme People's Court has issued the Provisions on Several Issues concerning the Trial of Cases Involving Administrative Agreements in 2019,there is still no unified understanding of this special judicial interpretation.How to identify administrative agreements remains controversial.There are different rules between administrative agreements and civil contracts in terms of contract conclusion,validity,performance,liability under a contract,judicial proceedings,dispute resolution,etc.Therefore,it is of great importance to clarify the identification criteria of administrative agreements.In view of the dilemma of identifying administrative agreements,it is necessary to discuss the nature of administrative agreements,and make clear that the distinction between administrative agreements and civil contracts lies in the proportion of administrative or contractual nature.In the administrative agreement,the proportion of administrative sex is bigger,but in the civil contract,the proportion of agreement is bigger.For the determination of an administrative agreement: firstly,the "role of administrative power" shall be taken as the basis for the determination of an administrative agreement.The function of administrative power includes subject element,duty element and content element.Among them,the main elements of the administrative subject and the administrative counterpart equal consultation,give up the one-sided strong position and the weak administration.The duty essential factor and the content essential factor have the strong administration nature because they have reflected the administrative power movement directly.By taking into consideration the factors of all parties,contracts such as contract agreements,lease agreements,government procurement contracts,government franchise agreements,state-owned natural resources use right assignment contracts,settlement agreements,etc.are taken as examples and administrative concentration shall be determined in accordance with the provisions of relevant laws.Secondly,the administrative agreement "public welfare orientation" to judge.Only in the face of the expansion of the public interest identification trend,through drawing lessons from the "proximate cause theory" of public interest identification to limit.In other words,only the direct result of duty performance may berecognized as public interest.Finally,it is judged whether the administrative subject and the other party's declaration of will are consistent.