Judicial Determination Of "Significant And Obvious Violation Of Law" In The Invalidation Of Administrative Agreement

Invalid administrative agreement is an important part of administrative agreement system.Based on the essential attributes of the agreements,it is particularly important to understand from the perspective of public law.This article primarily researches the judicial confirmation of significant and obvious violations in invalid administrative agreements.The theory of major and obvious violations originated from three theories:The theory of public determination,the theory of civil resistance,the theory of administrative rule of law.On the basis of these three theories,civil law countries such as Germany and Japan have established theories of invalid administrative actions.Subjective and objective theory and obvious illegality can be applied to administrative agreements because of the nature of administrative agreements and the theory of public rulings should also apply to administrative agreements.In the judicial practice of administrative agreement,there are many ways to identify major issues and obvious violations can be divided into identification methods that distinguish specific situations and general identification methods.In judge trial,this includes three main problems in "major and obvious violations" : unclear boundaries of illegality,unclear understanding of the specific manifestations of "major and obvious violations",and confusion with invalid administrative agreement and the revocability of administrative agreements.This article discusses the major and obvious illegal standards from three aspects:illegality,materiality,and obviousness.Among them,illegality is the basis,and materiality and obviousness are the expressions of the degree of violation.The level of violation of the law should be considered comprehensively.At the same time,the scope of the above-mentioned "laws" should be limited to mandatory provisions.Materiality should consider the importance of the administrative agreement that violates the laws and regulations and meets the constitutional requirements of the administrative agreement,and the severity of the consequences after the administrative agreement is signed.Obviousness is judged based on the knowledge of ordinary rational people.Specific situations that are material and obvious violations include the implementation subject does not have the qualifications of an administrative entity,has no basis,its content can not be implemented objectively,and other major and obvious illegal acts.Other major and obvious violations of the law include: administrative agreement does not have the qualifications to conclude a contract,does not have the statutory form requirements,and the contracting procedure is illegal.Significant and obvious violations of the law shall be applied first in the invalidation of administrative agreements,and the court shall be based on the overall solution,and actively review the administrative agreements that meet the invalid requirements.At the end of this article,we propose a supplement for major and obviously illegal use: specific value measurement.The prerequisite for the application of the specific value measurement is that the invalidation of the judgment will cause serious damage to the administrative counterpart and the public.The application of specific value measurement should be based on the principle of exception.The initial goal and final goal of the specific value measurement are to protect the social benefit in the administrative agreement and the benefit of the other party.