| The application for revocation of the administrative agreement as a type of independent administrative agreement disputes was clearly stipulated in the " Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Agreement Cases" promulgated in 2019.Cases are not uncommon in judicial practice.This article starts with the adjudication documents of this specific type of case to study the legal application of this type of case.On the one hand,it analyzes the overall characteristics of the court’s application of administrative legal norms and civil legal norms in the trial of such cases.Characteristics of individual or mixed modes of application,scope of application,and order of application;on the other hand,a micro-analysis of the specific issues of the court’s revocation of administrative agreements,especially the basis and duration of the revocation,the situation and characteristics of the application of the law,It also further analyzes the true attitude of court review reflected in the application of different laws.Finally,it provides suggestions on the review methods,revocation basis,and specific application of the revocation period for such cases.Through the analysis of specific types of administrative agreement dispute cases,we can better grasp the law applicable laws of such cases,and also provide an observation window and entry point for a more macro and complex administrative agreement dispute law application issues.The study found that in judicial practice,the application of law is not uniform on the basis and term of administrative agreement revocation.It differs from the court’s understanding of the meaning of the "revocation of administrative agreement",the court’s comprehensive legality review or according to the original request.The different choices between review,legality review or validity review,and different understandings of the nature of administrative agreements are closely related.Among them,the administrative principles according to law and the freedom of contract and the principle of contract observance under the requirements of "administrative" and "agreement" of administrative agreements have profoundly affected the application of the law by the court under different modes of review.The application of the law to revoke an administrative agreement requires reviewing the case on the premise of coordinating administration according to law and freedom of contract,and the contract should be observed,following the three-step path of “examination of the nature of the agreement,legality review,and effectiveness review” On the basis of full consideration of the provisions on the effectiveness of administrative acts and the provisions on the effectiveness of civil contracts,the basis for revocation of administrative agreements is determined.Regarding the specific basis for the revocation of administrative agreements,when applying the review of the revocation of administrative agreements provided for in Article 70 of the Administrative Procedure Law,not only the principle of administrative administration in accordance with law,but also the contractual requirements under the "consensual" requirements of administrative agreements shall be considered.The principle of observance shall be given,and the administrative agreement shall be given greater resilience in cases where the violations are relatively minor,such as procedural violations;when the court review finds that the defended administrative agreement has a significant and apparent violation in accordance with Article 75 of the Administrative Procedure Law,The plaintiff should be clarified and it is not appropriate to directly revoke the administrative agreement.In addition,Article 54 of the Contract Law should be used to review the legality of administrative acts in this type of cases;Article 52 of the Contract Law can be included in Article 70 or Article of the Administrative Procedure Law 75 It is not necessary to evaluate the application of this article for review. |
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