The Abuse And Control Of The Administrative Advantage Right In Public-private Partnership Agreement

In the context of comprehensively deepening reform,government functions have been transformed accordingly.The continuous evolution of social and economic development and public system reform has promoted the continuous improvement and optimization of government functions.In order to better protect public interests,achieve the goal of administrative management,and promote the cooperation between government and social capital in the field of public services and infrastructure,it is an important institutional arrangement for China to improve the efficiency of public service supply.The collaboration between the government and the social capital side is seen as a major innovation in the provision of public services.This mode of public-private cooperation in handling administrative affairs has become an important way for the reform of the administrative system,a more flexible means to promote the modernization of the national governance system and governance capacity,and plays an important role in the realization of administrative management and public interest goals by administrative subjects.It is based on the realistic demand of maintaining administrative management and public interests that the administrative subject enjoys superior administrative power over the other party in the public-private partnership agreement,which is the administrative superiority right.In China,there is no special legislation to regulate the right of administrative superiority in the public-private partnership agreement,and there is a problem that the right of administrative superiority is abused in practice due to the abstract,fuzzy and subjective initiative of the exercising conditions of the right of administrative superiority.This,to some extent,seriously interferes with the healthy development of economy and society and hinders the realization of the goals of the country,society and government under the rule of law.Therefore,it is of practical significance to study the abuse and control of the administrative beneficial right in the public-private partnership agreement.This paper first explains the concept and nature of the prior right in administrative,and public-private cooperation agreement in the prior right in administrative specific connotation are discussed in this paper,namely the prior right in administrative is a kind of public power,with a specificity,mandatory,inseparability of rights and obligations,and the characteristics of statutory obligations,its connotation mainly includes unilaterally change and the right of rescission,sanctions and so on.In the prior right in administrative interpretation theory,this paper through the magic weapon of Peking University and Chinese web search for relevant administrative agreement written judgment case was summarized and comprehensive arrangement,the selected typical cases at the same time,from the micro level,through the abuse of prior right in administrative judicial practice of empirical analysis,discusses the administrative standard of the abuse of prior right,namely,the principle of due process,the principle of public interest and the principle of honesty and credit.On this basis,this paper based on a macro level,the theory of the abuse of prior right in administrative judgment standards and the standards of judicial practice summary analysis,and then determine the applicable in public-private partnership agreement of the abuse of prior right in administrative main criterion,namely,the principle of due process,the honest credit principle,proportion principle,the principle of public interest.At the same time,this paper analyzes the abuse of administrative beneficial right in the public-private cooperation agreement,that is,the administrative subject is illegal,exceeds the scope and authority of legal exercise,and does not conform to the legal procedure of power exercise.Finally,this paper puts forward some Suggestions and measures for the control of the abuse of administrative superiority rights.Through the entity and the procedure two levels of control,both can not be missing;Through the power abuse of legal responsibility,the administrative subject who abuses the administrative right of superior interest should bear the corresponding legal responsibility and the adverse litigation consequences,so as to more effectively restrict the free space for the administrative subject to exercise the administrative right of superior interest,legally and reasonably exercise the power,and safeguard the legitimate rights and interests of the other party in the agreement;Through the internal and external supervision mechanism to play a role in the control of the abuse of administrative rights of superior interest play a better effect,really play the administrative rights of superior interest should function and role.