A Study On The Judicial Standard Of Administrative Agreement In China

In 2015,the revision of the administrative procedure law affirmed the concept of "administrative agreement" for the first time at the level of empirical law,and the number of administrative agreement cases rose sharply.Since 2020,the "provisions on several issues in the trial of administrative agreement cases" has further explained the concept of administrative agreement,but this explanation does not give specific instructions on how to identify administrative agreement in judicial practice Guidance.Therefore,there are still some problems in practice,such as the confusion in the selection of identification standards,the confusion in the primary and secondary contradictions,and the differences in the legal basis of identification.Especially when the practice of administrative agreement is more diverse than the theory,it also indirectly leads to the increasing number of related disputes.Therefore,it is urgent to build a unified standard of administrative agreement that can balance public and private interests.From the perspective of practice,in the pku law.com taking "administrative agreement and administrative contract" as the case name,this paper selects 100 judicial documents before the implementation of the administrative procedure law in 2015,after the implementation of the administrative procedure law in 2015,before the implementation of the interpretation of administrative agreement in 2020,and after the implementation of the interpretation of administrative agreement in 2020 On the basis of the judgment document which belongs to the administrative agreement,this paper lists the reasons why the nature of the agreement is really adopted by the administrative agreement in judicial practice.At the same time,the paper searches "administrative agreement + civil contract" and "administrative contract + civil contract" as the contents of documents,and also selects the judgment documents which are reasoned and finally identified as not belonging to the administrative agreement as the basis,and lists the reasons why the judge thinks they belong to the civil contract.In the way of distinguishing positive and negative standards,it is found that in practice,the standards used by judges to determine the nature of the agreement belong to the administrative agreement mainly start from seven aspects: the subject,purpose,content,whether there are legal responsibilities,whether there are negotiations,whether there is a relationship between the management and the managed,and whether they enjoy the right of administrative advantage The standards used in the contract mainly include content standard and status standard.Combining the positive and negative standards of administrative agreement,it is found that the core points of distinguishing administrative agreement in practice are "subject standard","status standard" and "content standard".The consensus negotiation standard is not controversial,so it can be preliminarily distinguished from administrative act or other legal act.At the same time,in the actual signing of the administrative agreement,based on its public interest attribute,the content of the administrative preferential right often runs through the content of the administrative agreement.However,considering the lack of legislation in our country,the administrative preferential right can only be applied in practice as an auxiliary standard.When other standards can not confirm the nature of the agreement,we can refer to the administrative preferential right In order to ensure the accuracy of the final determination,the right standard further analyzes the nature of the agreement.Therefore,this paper thinks that the effective standards include the main standard,the core standard and the auxiliary standard.On the premise of the main standard,that is,the negotiation standard reflecting the agreement,the core standard,that is,the subject standard,the status standard and the content standard,and the administrative priority right as the auxiliary standard,the judicial standard for the determination of administrative agreement is unified,so as to promote the good settlement of administrative agreement disputes.At the same time,this paper puts forward some suggestions on the improvement of the agreement signing system,that is,to establish an "express" signing system,on the one hand,to standardize the "famous" administrative agreement system,on the other hand,to explicitly determine the nature of the agreement when signing,so as to reduce the disputes on the nature of the agreement,hoping to be beneficial to the settlement of administrative agreement disputes.