Protection Of Competitors' Litigation Rights In Administrative Agreement

The competitors are those citizens,legal persons and other organizations who try to conclude administrative contracts with the administrative organs but fail to do so.Competitor relationship can be classified into three types: positive competitor relationship,negative competitor relationship and exclusive competitor relationship.The competitor relationship in PPP agreement discussed in this paper belongs to exclusive competitor relationship.The concept of competitor in administrative agreement is a subset of the concept of the third person,but there are differences,which are different stages of existence,different relationship with the counterpart of the agreement and different interests of conflict.Why we must protect competitors' litigation rights in administrative agreements? On the one hand,it is for the protection of competitors' rights and interests,on the other hand,it is because the right to sue for competition is the key to competitors' rights and interests.The reason why the rights and interests of competitors in administrative agreements should be protected is for the good and orderly development of public-private partnership,based on the need to maximize public interests and provide high-quality public services,as well as to enhance the credibility of the government and supervise the administration of administrative organs according to law.The reason why the protection of the right to prosecute is the key to safeguard the rights and interests of competitors is that the current legislative and administrative levels are insufficient to protect the rights and interests of competitors,while the judiciary has the unique function of supplementing legislation and explaining and developing the law,which can play an important role in protecting the rights and interests of competitors in administrative agreements.However,the lack of protection of the right to prosecute of competitors is very prominent nowadays.Three prominent issues in the protection of competitors' right to prosecute are the nature of selection decision,whether fair competition can be used as the basis for prosecution and the qualification of competitors' plaintiffs.To clarify the nature of the act of the selection of counterpart of administrative agreement is the premise of protecting the competitor's right to sue.Different scholars have different opinions on the issue that the nature of the administrative organ's selection decision of agreement's counterpart,but generally they still believe that the selection decision of the administrative organ belongs to the administrative act.The administrative agreement can be divided into two parts: administrative act and administrative agreement,with the contract signing as the demarcation point.The selection procedure of the counterpart of the administrative agreement is not all administrative acts,but needs to exclude the internal operation rules and general procedural acts.Only the acts that have actual impact on the rights and obligations of competitors are administrative acts.The existence of the selection decision is the premise of the subsequent administrative contract.The selection decision is cancelled and the administrative agreement is invalid naturally.The connotation of the right to fair competition should not be limited to the cases listed in Chapter 5 of the Anti-monopoly Law,but also include unreasonable differential treatment of all administrative organs and violations of due process.Fair competition is the core element of the procedure of selecting counterparts in administrative agreements.The process of selecting counterparts in administrative agreements should be regulated by the relevant rules and principles of the Administrative Procedure Law.In the relevant litigation of competitors in administrative agreements,competitors enjoy the right to claim the formation of non-discriminatory procedures.Generally speaking,the right to fair competition,as a legal right enjoyed by competitors in administrative law,can be used as a basis for prosecution.When a competitor sues for a selection decision,the competitor in the administrative agreement has the plaintiff qualification,and the ranking of the selection procedure does not affect the plaintiff qualification of the competitor.In the case of repeated contracting,the competitor also has the plaintiff qualification.When the competitor sues the administrative agreement itself,its plaintiff qualification will be affected by the civil basic disputes between the competitor and the counterpart.Generally speaking,when there are some civil basic disputes between the competitor and the counterpart of the agreement,the court will generally initiate civil litigation before the competitor,denying the plaintiff's qualification to initiate administrative litigation.However,for civil disputes that should be protected or considered by the administrative organs when they make the decision of appointment,the courts should hear them together directly in the process of examining administrative litigation cases,and it is not appropriate to deny the plaintiff qualification of competitors accordingly.Relativity of contract has no effect on the plaintiff qualification of competitors.Competitors can sue for obligation in administrative agreement competitors' lawsuits.Finally,the theory of separable behavior does not affect or restrict their plaintiff qualification.