On The Application Of Civil Law In Judicial Determination Of Invalid Administrative Agreement

With the modern state construction and economic development,the service-oriented functions of the government are becoming increasingly obvious,and the performance forms of administrative agreements in the daily functions of the government are becoming increasingly rich.The administrative agreement enables citizens to actively participate in the daily administration of the government,so that the relationship between officials and people no longer sticks to the traditional management relationship,but changes to a cooperative modern administrative relationship.On the one hand,it is conducive to the development of service-oriented government and the development of a society ruled by law.On the other hand,it also brings more and more disputes about administrative agreements.However,at present,the legal norms of administrative agreements in China are not complete,and related research on administrative agreements lacks theoretical depth.Administrative agreements are born out of civil contracts.In view of civil contracts,the rules of administrative agreements are not complete,so countries usually refer to relevant civil law norms when reviewing administrative agreement issues.In November last year,the Supreme People's Court passed the "Provisions on Several Issues in the Trial of Administrative Agreement Cases",which clarified the legality and necessity of civil law norms as the criterion for reviewing the effectiveness of administrative agreements,but which civil law norms,How to apply and how the applicable standards are unified does not provide clear rules and guidelines.Weak legislation and many problems in judicial trial practice became the beginning of this article.The application of civil law norms in determining the validity of administrative contracts is essentially a game of the relationship between public law and private law.The integration of public and private law is to prove the validity of the administrative agreement as applicable to civil law,and at the same time to provide a theoretical basis for the applicable standard judgment.With the continuous increase in the convergence of public law and private law in practice,the third jurisdiction theory provides room for growth in administrative agreements,which belongs to a legal relationship in the "third jurisdiction." Although the third jurisprudence theory describes the blending of administrative law and civil law,it has no more reference to which legal norms should be used respectively,which is the significance of this study.With the increasing number of judicial decisions on the invalidity of administrative agreements in recent years,the materials available for theoretical research are also increasing.This article focuses on the application of civil law norms to determine the invalidity of administrative agreements in judicial practice.This vague point provided by the substantive law starts with the relevant cases from 2015 to 2020 to analyze the specific circumstances of the court's use of civil norms to determine the invalidity of administrative agreements.Analyze and classify specific adjudicative documents,and summarize the three types of adjudicative logic: civil law,auxiliary application of civil law norms,simultaneous application of administrative norms and civil law norms,and research on the court's argumentation logic and judicial practice perspectives.Compared with the theory and system construction of civil contracts,there are currently no unified regulations and systems for administrative agreements in the world.In recent years,a series of laws and judicial interpretations have stipulated related systems in China.However,there is still lack of detailed regulations on the applicable standards of civil law to determine the effectiveness of administrative agreements.The related research on the invalidation and application of administrative agreements and civil law norms is in theory.There are also many controversies in the world.Many rules of invalidation of administrative agreements still depend on the development of relevant judicial practice.The use of civil law to determine the invalidation standards of administrative agreements is facing many difficulties in theory,norms and legal norms.Facing the argument that some scholars or theorists assert that the validity of administrative agreements completely excludes civil law norms,or simply review civil norms in an equal position with the first attribute of administrative agreements;the lack of relevant laws in administrative legislation The fragmentation of judicial interpretations;the chaotic logic of the court's judicial practice,the different judgments in the same case,and the practice of naming the people,etc.The author analyzes the domestic and foreign models of using civil law to determine the invalidity of administrative agreements,and sets a model for the application of private law.It is necessary to follow the restrictive conditions that the public law norms take precedence over,and to reasonably apply the applicable conditions of the civil regulations according to the specific circumstances of the case.At the same time,according to the frequency of the courts applying the provisions of the civil law in judicial practice,the specific application situations are introduced one by one and the judicial practice is analyzed.The judgment logic of the Chinese courts collates and summarizes different judgment logics,and provides ideas and specific methods for using civil law norms to determine that administrative agreements are invalid.