Research On Judicial Review Of Administrative Agreement From The Perspective Of Process

As a new type of administrative management,administrative agreement has adapted to the requirements of the current transformation of government functions,and has become an important part of China's administrative management..The legislation on judicial review of administrative agreements began in 2014 administrative procedure law,which incorporated administrative agreements into the scope of accepting cases in administrative litigation,and the judicial review system of administrative agreement cases was initially established.Then,according to the problems in the practice of the system,the Supreme People's court has formed the judicial interpretation of the Supreme People's Court on Several Issues concerning the application of the administrative procedure law of the People's Republic of China in 2019 after four years of revision,which explains the standards to be grasped in each link of the judicial review of administrative agreements and greatly improves the operate of the system.However,the new judicial interpretation can only solve the problem of lack of basis in the trial of administrative agreement judicial review,and still can not meet the needs of the whole process of administrative agreement judicial review,so there is still a lot of room for the improvement of the system,and the research on the process system of administrative agreement judicial review is still necessary and urgent.From the perspective of process theory,this paper first analyzes some problems stil l faced in the judicial review of administrative agreements,and takes the dynamic and comprehensive investigation method in the process theory as the methodology to further solve the problems existing in the review of procedural form elements and substantive review in the whole process of judicial review of administrative agreements.The examination of the elements of litigation form solves the problem of whether the case can b e accepted by the court.The current law and judicial interpretation do not provide the standards to determine the parties and the scope of the case.There are still two problems in the examination of the elements of litigation form: whether the plaintiff and the defendant are qualified and how to determine the scope of the case.However,in the substa-tive review,the review of administrative agreement is not comprehensive.In view of the problems in the above mentioned formal review,this paper puts forward that if the scope of accepting administrative agreement litigation conforms to the requirements of the concept of administrative agreement and corresponds to the types of administrative agreement explicitly listed by law and judicial interpretation,it belongs to the scope of accepting administrative agreement;if it can not correspond to the types of administrative agreement listed,but the concept of administrative agreement corresponds to the elements of the case with rigorous and reasonable reasoning,it also It belongs to the scope of accepting cases in administrative agreements.The proper plaintiff and defendant of administrative agreement litigation require to judge whether they have the power to conclude administrative agreement.The determination of the defendant also needs to consider the special circumstances of the defendant.In view of the problems in substantive review,this paper uses the method of dynamic administrative legal relationship provided by process theory to review the whole process of administrative agreement.Specifically,it includes the review of the specific links of the administrative agreement making behavior,performance behavior,change behavior,dissolution behavior and related non administrative agreement behavior.The examination of the legality of the signing act solves the problems of the legality of the administrative agreement and the effectivene ss of the administrative agreement.If the behavior of the subject and the counterpart of the administrative agreement and the content of the administrative agreement are legal,the behavior of the administrative agreement is legal and effective;if the behavior or content of either party is obviously or significantly illegal,the administrative agreement is invalid;if the main body or content of the administrative agreement is revocable,the administrative agreement is revocable.The review of the performance of administative agreement solves the problem of liability for breach of contract.In the performance o f administrative agreement,the non performance or improper performance of either part y will lead to the corresponding liability for breach of contract.The alteration and rescission of administrative agreement not only involves the legality of the exercise of the unilateral alternative on and rescission right of the administrative subject,but also involves the behavior that the administrative counterpart requests the alteration or rescissin-cion of the administrative agreement due to the existence of the contract.The review o f relevant non administrative agreement behavior is the review of administrative behavior and factual behavior that affect the legitimacy of administrative agreement,such as administrative collection,administrative concession and other administrative behavior and factual behavior.On the whole,the review of the form and substance of administra tive agreement litigation by dynamic method covers the whole process of administrative agreement judicial review.