Research On Administrative Agreement Litigation Judgmen

The Administrative Procedure Law revised in 2014 and implemented in 2015 not only included the administrative organ's failure to perform in accordance with the law,the failure to perform in accordance with the agreement,the illegal unilateral change or dissolution of the administrative agreement into the scope of administrative litigation,but also specifically stipulated the judgment mode of administrative agreement litigation,that is,continue to perform the judgment,remedy judgment,compensation judgment and compensation judgment.On this basis,Article 15 of the 2015 Interpretation on Several Issues concerning the application of the administrative procedure law of the people's Republic of China also added confirmation of effective judgment,cancellation judgment and confirmation of invalid judgment,providing guidance for the court to judge administrative agreement cases.The Provisions on Several Issues concerning the trial of administrative agreement cases issued in 2019 also made supplementary provisions on the judgment of administrative agreement litigation.However,administrative agreement is a kind of administrative management mode integrating "administrative" and "contractual",which is necessarily different from unilateral administrative act and civil contract,and the administrative agreement litigation based on it is also necessarily different from the traditional administrative litigation,which is embodied in four aspects: the nature of the sued administrative act,the object of judicial review,the standard of judicial review and the application of law.Therefore,the traditional administrative litigation judgment or civil contract judgment can not be simply applied to administrative agreement cases,but the administrative agreement litigation judgment system should be constructed according to the essential characteristics of administrative agreement litigation.As the final link of the litigation procedure,administrative agreement litigation judgment bears the key task of relief right.However,due to the legislative provisions on administrative agreement litigation judgment are too superficial,there are various problems in the use of administrative agreement litigation judgment in judicial practice.Mainly reflected in: first,the lack of administrative agreement on the legality of the act of review.Especially in the case of revoking or rescinding administrative agreement,the court neglected the importance of making clear the administrative agreement involved in the case and examining its legality;secondly,there are different bases for the application of administrative agreement litigation judgment,especially in the case of applying for revoking administrative agreement and confirming the invalidity of administrative agreement,some courts directly follow the civil legal norms such as Article 52 and Article 54 of the Contract Law to review whether the administrative agreement is revocable orinvalid.However,the nature of administrative agreement is "administrative".Whether administrative agreement is revocable or invalid should be examined first by applying administrative legal norms,otherwise there is the suspicion of "private law escaping into public law";thirdly,there are differences in the application of judgment methods in the same type of cases.The first is that the court still makes a change judgment for the case that does not belong to the application of the change judgment;the second is that there are specific differences in the measures to remedy the judgment;the fourth is that the litigation judgment mode of the administrative agreement is confused,which is manifested in the case that the application continues to perform and the administrative agreement is terminated.If it is found that the litigation administrative agreement is invalid after examination,some courts will make a refutation according to the litigation alternative judgment.In addition,some courts choose to make invalid judgment according to the effect.Administrative agreement litigation is a kind of litigation under administrative litigation.In the way of judgment,there should be not only the commonness of traditional administrative litigation judgment,but also the judgment type that conforms to its own characteristics.The establishment of administrative agreement litigation judgment is not only influenced by the general factors such as the purpose of administrative litigation,the classification of administrative agreement litigation,the restriction relationship between judicial power and administrative power,and the value choice after the public interest and personal interest are measured,but also by the multiple judicial review standards of legality,rationality and contract,the principle of administration according to law and the principle that the contract should abide by relationship and other special factors.Based on the above factors and the problems existing in the judicial practice of administrative agreement litigation judgment,this paper puts forward the following suggestions: first,in the current administrative litigation framework,it is necessary and appropriate to give priority to the application of administrative laws and regulations to review administrative agreement disputes,which focuses on clarifying the "sued administrative agreement behavior" in all kinds of administrative agreement cases and conducting legal trial Check and deny the direct application of civil laws such as contract law to examine whether the administrative agreement is revocable or invalid.Second,in order to provide more specific guidance for the court to apply the judgment accurately,it is necessary to clarify the applicable conditions of the existing judgment in the administrative agreement litigation.Third,clarify that the administrative agreement litigation can follow the traditional administrative litigation of revoking judgment,changing judgment and confirming illegal judgment.Fourth,in order to make up for the deficiency of the administrative agreement litigation judgment,it is necessary to addand correct the judgment to "cure" the procedural defects of the administrative agreement conclusion in order to maintain the validity of the administrative agreement,add the contract judgment to protect the legal rights of the counterpart in the "contract stage" and supervise the administrative subject to exercise its functions and powers in accordance with the law.