On The Right Relief Of Administrative Organ In Administrative Agreement

Since the law endows administrative organs with certain administrative right of advantage,legal workers or legislators all believe that China’s administrative organs have an absolute dominant position in the process of their administrative ACTS,and thus in the construction of the administrative litigation system,they tend to prefer the one-way litigation mode of "constant creation of two".After the administrative agreement is used as the administrative means of "soft law enforcement",the legislator still follows the treatment method of the traditional administrative act,which also focuses on the remedy and protection of the rights of the administrative counterpart and ignores the remedy and protection of the rights of the administrative organ after the infringement during the performance of the administrative agreement.Although the Supreme Court promulgated the regulations on the handling of administrative agreement on several issues of the "judicial explain how the other party defaults faced to the administrative organ relief to make relevant provision,namely,the other party fails to perform or not according to the agreement to perform the obligation,the administrative organ can through the performance of the decision or decision,and to the court accusing the execution measures such as relief,but the terms are general,principled regulations,in the judicial practice of specific operations,still faces many difficulties.Compared with the development of the theory of administrative agreement in China,the theories of administrative agreement in France,Germany and the United States are more mature.They have rich practical experience in the establishment of the right relief system of administrative organs in the administrative agreement,which is worthy of our study and reference,such as the systems of civil action,administrative action,non-litigation execution and administrative decision.In order to develop and perfect China’s administrative agreement system,we need to base ourselves on national conditions and learn from and absorb the experience of other countries according to local conditions.First,starting from the source,we should strengthen the legislation of administrative agreements,improve the administrative law system,especially the basic systems for the establishment,performance and right relief of administrative agreements,and solve practical problems such as lagging laws and insufficient legislation.Second,we should further improve the procedures and systems for non-litigious execution,refine the examination standards and implementation rules,enrich the trial forms,add hearingprocedures,and ensure the right of counterparts to fully express their opinions.Thirdly,we should learn from the legislative experience of administrative agreements in foreign countries and the practical experience of Solving civil disputes in China to broaden our thinking and strengthen the popularization and application of the mediation system.Fourthly,we should innovate and develop the existing right relief system,give limited counterclaim right to administrative organs,try to develop the "two-way" litigation structure,and promote multi-pronged efforts to calm and resolve administrative agreement disputes in Our country.