Research On Verdict Methods Of Administrative Agreement Cases

The judgment system plays an extremely important role in administrative litigation system due to the lack of the type of administrative proceedings.The revised version of the Administrative Litigation Law in 2014 showed that administrative agreement was included in the scope of the case,and judgment type of the administrative agreement was also added.The judgment type of the administrative agreement in the revised version of the Administrative Litigation Law cannot be used to address the realistic administrative trial.It has been five years since the Administrative Litigation Law was amended,but the judicial interpretation of the administrative agreement has not been promulgated,which reflects the complexity of judgment type of the administrative agreement.With application of administrative agreement in practice,the number of cases of the administrative agreement is increasing.Therefore,it is significant to perfect the judgment type of the administrative agreement.This article containing four chapters comprehensively research the judgment type of administrative agreement.The first chapter shows the legislative regulation of judgment type of the administrative agreement.This chapter gives a detailed description of types of judgment of administrative agreement cases in Administrative Litigation Law,Interpretation of the Supreme People's Court on Application of the Administrative Litigation Law and the unpublished special judicial interpretation of administrative agreement.Administrative agreement contains the dual nature of “administrative” and “desirability”.In the administrative agreement cases,administrative agencies of government not only conclude an agreement with administrative counterpart,but also has unilateral administrative act,such as using administrative prior rights to unilaterally terminate the agreement.Therefore,the judgment method of Administrative Litigation Law can be divided into the special judgment methods on Article 78(e.g.continuing to perform agreement of the judgment,taking remedial action of the judgment,indemnificatory judgment,compensatory judgment),and other traditional judgments that can be applied to the administrative agreement cases(dismissal judgment,revocation judgment and dissolving the contract of the judgment).Besides,confirming the agreement of the judgment,confirming the invalid agreement of the judgment and dissolving the contract of the judgment were added in the Interpretation of the Supreme People's Court on Application of the Administrative Litigation Law.Signing the agreement of the judgment,canceling the agreement of the judgment,confirming the ineffective agreement of the judgment and changing the agreement of the judgment were added in the unpublished special judicial interpretation of administrative agreement.This chapter systematically summarized 14 types of known judgments,the applicable conditions and functional values at a theoretical level.The information in Chapter 1 will benefit for the in-depth analysis on specific cases of the administrative agreement in the following Chapter.The second chapter shows the current judicial situation of judgment type of the administrative agreement.First,we retrieved thoroughly court verdict of the administrative agreement.A total of more than 400 judgments containing the first and second trials were collected,of which 207 cases were selected for further study.After studying the sample cases,we analyzed the present situation of judicial decision of Chinese administrative agreement cases summarized the specific problems in the application of various methods,and found the practical rules in the application of various methods,and obtained a key issue in the verdict methods of administrative agreements.Apart from absence of types of judgment caused by a lack of legislation in administrative agreement,judges often encounter “Capability Panic” when they utilize verdict methods of administrative agreement cases.The main characteristics of the “Capability Panic” can be reflected by the fact that judges can not correctly use the verdict methods and unify the judgement standard.It leads to the unsatisfactory effect of administrative agreement disputes and the appeal trail.This chapter shows the prominent problems in the application of verdict methods about the administrative agreement,and have a role to establish judgment mode system.The third chapter is to set up theoretical reasons for the verdict methods of the administrative agreement.For the new type of administrative agreement,we should update the basic principles of the traditional administrative law.We should set up the judgment methods of the administrative litigation about administrative agreement by considering the following points.First,dealing well with relationship between “freedom of contract” and “administration by law”.Administrative agreement has the characteristic of administrative and contractual.We should consider “characteristic of administrative” and “characteristic of contractual”,of which characteristic of contractual is main one.The new judgment methods distinguish from the judgment methods developed by traditional administrative act and the judgment methods developed by obeying the rules of the civil contract purely.Second,to some extent,the legal judge standard separates from the effective judge standard in the administrative agreement.It will reach a balance between legality and cooperation.Third,it is necessary to strike a balance between public advantages and private interests.Public advantages are always in stronger situation compared to the private interests.Therefore,sometimes,attention must be paid to private interests.Fourth,the judgement of administrative agreements made by the judges should resolve the proceedings and agreement disputes.The fourth chapter is to improve the judgment system of administrative agreements.First,in order to perfect the judgment methods about administrative agreement,judgment methods should be typed and systematized and the relationships between types of administrative proceedings and judgment mode,claim and judgment mode,object of judgment about action and object of judgment about relationship should be identified.There is not a one-to-one correspondence between type of administrative proceedings and judgment modes,but they are closely related with each other.In the administrative agreement cases,people have not adhered strictly to the rule of “unanimous claim and judgment”.The most suitable types of judgment was selected to deal with dispute based on the discretionary power.The trial object has double-deck structure.The judge should consider the claim of litigant and make the judgments based on the object of judgment about action and object of judgment about relationship.Finally,based on the contents in this chapter and the prominent problems of subsistent judgment modes in the previous chapters,we should standardize rating criteria of compensatory judgment and confirm the element of invalid judgment.The corresponding types of judgment should be added based on the rating criteria of normative compensatory judgment.From the previous chapters,we attempt to show the improvement process of the administrative judgment mode system,and its inner logic and reconstruct the verdict methods of administrative agreement cases.