Research On The Regulation Of Administrative Preferential Rights In Administrative Agreements

With the development of economy and society,the concept of building a welfare state and serving government has become a consensus.As a flexible and open administrative management method,the administrative agreement is different from the rigid and imperative administrative management method in the past.It plays an increasingly important role in the current administrative management.At present,the most common administrative agreements are expropriation compensation agreements,franchise agreements,etc.These agreements not only facilitate the exchange and cooperation between private subjects and administrative subjects,but also greatly improve administrative efficiency.Exploring the nature of administrative agreement,it is a product of the fusion of public and private law,and it is both "administrative" and "consensus" in administrative agreement.The unilateral enjoyment of the administrative superiority right by administrative subject reflects the "administrative" of the administrative agreement.The administrative superiority right is of vital importance in the signing and implementation of administrative agreements,mainly for the smooth realization of administrative purposes and better protection of public interests.However,the improper use of administrative superiority right will damage the interests of the counterparty,so further understanding of administrative superiority right is needed.The administrative superiority right is a special existence that involves the legitimate rights and interests of the counterparty,a detailed analysis of it from the concept and nature is essential.The administrative superiority right as compulsory powers that an administrative subject enjoys unilaterally based on the particularity of its own administrative subject and can be directly exercised in the signing and implementation of administrative agreements in order to achieve administrative purposes or to maintain public interests.The administrative superiority right exists due to the administrative nature of administrative agreements and the need to protect the public interests.However,based on the legislative status and application of administrative superiority right,combing and analyzing the rights,we can see that there are the following deficiencies in the regulation of administrative superiority right.First,there is no uniform and systematic regulation on administrative superiority right in legislation.Second,The basic principle of administrative superiority right is lack,so it cannot be fully regulated from the inside out.Third,there are many expressions of public interest in administrative agreements without detailed explanations,and there is not much explanation in court trials.Fourth,the rights and obligations of the two parties are not equal in administrative agreement,and the rights of the counterparty in the agreement are not effectively guaranteed;Fifth,due to the lack of procedural regulations,it is difficult to prevent abuse of power.Sixth,due to the complexity of the content of administrative agreements and the diversification of disputes,existing relief measures cannot meet the needs of the counterparty.Solving the problems mentioned above is conducive to the reasonable exercise of administrative superiority right.Through appropriate learning from other countries' useful experience in the regulation of administrative superiority right.The following aspects can be considered to regulate administrative superiority right in administrative agreements.By legislating,to clearly define the types of administrative superiority right and its basic principles,scientifically define the public interest and give the counterparty the right to know,the right to make a statement,and the right to object.On the procedural side,it is necessary to introduce disclosure and notification systems,consultation and hearing systems,and avoidance systems to regulate the exercise of the administrative superiority right.In addition,introducing consultation,arbitration,and administrative reconsideration to better protect the legitimate rights and interests of the counterparty.