Remedies For The Counterparty’s Failure To Perform The Administrative Agreement

Administrative agreement enriches administrative means and meets the needs of modern administration.The administrative agreement itself has the nature of contradiction,and its administrative nature makes the theoretical basis of litigation relief approach insufficient,and its equality makes the theoretical basis of non-litigation enforcement relief approach insufficient,and the relative party’s non-performance of the administrative agreement dispute falls into a dilemma of theoretical relief.In order to solve this problem,the theorists put forward three kinds of relief programs: the relief program of civil litigation,the relief program of administrative litigation,the relief program of administrative non-lawsuit execution,but these three kinds of relief programs either do not consider the administrative nature of the administrative agreement,or do not consider the contractual nature of the administrative agreement.Under the one-way litigation system design of "the people complain to the court" in China,there is no clear legal provision on how the administrative subject can get relief when the administrative relative party breaches the contract.In the Provisions of the Supreme People’s Court on Some Issues Concerning the Trial of Administrative Agreements,the non-lawsuit referral compulsory execution path is selected from the above several processing paths to solve this problem.The author searched the China Judicial Document Network with the trial procedure as "administrative non-lawsuit review" and the year of adjudication as "2020",and selected 79 valid adjudication documents from January 2020 to October 2020.Then the author made a detailed analysis of the adjudication documents,and summarized two modes of judicial practice of non-lawsuit execution:Directly applying for execution in the name of an administrative agreement or in accordance with the provisions of an administrative agreement;The application for execution in the name of administrative decision can be divided into two situations.The first is that the administrative organ first unilaterally rescindes the administrative agreement,and then the administrative organ issues an administrative decision.The second is that the administrative organ does not cancel the process and makes administrative decisions in one step.Referral system of enforcement is the Supreme People’s Court in our country without violating the existing legislation framework made use of the existing judicial resources and law expedient,existing practice mode does not strictly comply with the requirements of the judicial interpretation,run counter to the lawmakers willing,against "two parallel prohibited behavior" principle,into administrative decision difficulty operation and so on.From the perspective of theory and system,it is difficult for the single and general relief scheme to take into account the dual attributes of the administrative agreement,and only the scheme discussed by classification can satisfy the complex attributes of the administrative agreement.Classified relief is a two-step process.The first step is the study of "classification" and the second step is the study of "relief".The classification of administrative agreement is the theoretical premise of classified relief.There are different theoretical classifications for the classification of administrative agreement,but in essence they all take the proportion of administrative power in the administrative agreement as the standard.According to this standard,the author divides the administrative agreement into two types.The first type is the administrative agreement led by power relationship,and the second type is the administrative agreement led by non-power relationship.The five typical administrative agreements enumerated in the judicial interpretation correspond to these two types of administrative agreements.The administrative agreement led by the power relationship is the replacement of the traditional high-power administration,so the traditional compulsory execution procedure is applied through the procedure reversal process and the hearing procedure is introduced to protect the opinions of the counterpart.The administrative agreement led by non-power relationship is a substantial agreement between the two parties,which breaks the legal basis of the traditional high power administration.Therefore,the establishment of two-way administrative litigation,the establishment of the limited prosecution right of the administrative subject,and the establishment of a special two-way review structure.