| Administrative commitment is a new,flexible and flexible administrative act,which is different from the traditional compulsory administrative means,but provides a platform for administrative counterparts to participate in administrative activities,so that more people can actively participate in administrative life,which greatly improves the efficiency of government administration.Administrative commitment refers to the administrative activities in which administrative organs or other organizations authorized by laws and regulations set public law obligations for themselves in a certain way and promise to do or not do specific actions under certain conditions in the future.However,China’s current legal system lacks specific legal norms on the relief of administrative commitment counterpart’s rights,the definition of administrative commitment is controversial,and the identification standard is inconclusive,which leads to the lack of understanding of administrative commitment by administrative organs,the number of administrative commitment dispute cases is increasing year by year,and litigation relief and non-litigation relief of administrative commitment counterpart’s rights are also facing difficulties,so it is of practical significance and theoretical value to improve the legal relief of administrative commitment counterpart’s rights.Regarding the definition of administrative commitment,there are controversies in both theoretical and practical viewpoints,but most viewpoints hold that administrative commitment is an administrative act that should be adjusted by public law.At the same time,because of the high flexibility of administrative commitment,the establishment of its identification standard has practical significance.On the basis of comparative analysis of the definition and characteristics of administrative commitment in theory and practice,the formal standard,substantive standard,unilateral expression standard and transformation standard of administrative commitment identification can be roughly summarized.The accurate identification of administrative commitment is the basis to solve the problem of relief for the relative rights of administrative commitment in reality.The damage to the rights of the counterpart of administrative commitment is mainly manifested in two aspects: one is the violation of superior law,ultra vires commitment,false commitment and other issues in the stage of making administrative commitment;the other is the problems in the stage of performing administrative commitment,such as keeping promises without practice,performing promises with defects,changing or revoking promises at will.Due to the lack of substantive laws and procedural provisions of administrative commitment,its unclear effect and unclear subject of responsibility are also the reasons why the relative rights of administrative commitment are in urgent need of relief.From the current situation of the right relief of the counterpart of administrative commitment in China,there are three main problems in the right relief: First,the identification of administrative commitment is inaccurate,and the phenomenon that administrative commitment is identified as civil commitment,administrative agreement and administrative reward in relief often occurs;Second,there are difficulties in litigation relief for the rights of the counterpart of administrative commitment.Taking 47 cases of administrative commitment in attracting investment as sample research objects,this paper adopts the research methods of case analysis and comprehensive analysis,and finds that there are some problems in litigation relief,such as unclear object and scope of review,inconsistent standards of judicial review,and less relief for administrative commitment judgment.Third,there are difficulties in the non-litigation relief of the relative rights of administrative commitment,which are mainly reflected in the fact that the relief functions of administrative reconsideration,administrative compensation and administrative compensation have not been fully exerted.There are reasons behind the difficulties in the relief of the relative rights of administrative commitment.First of all,there is a lack of legal norms to identify the standard of administrative commitment,and the premise error of right relief is caused by unclear identification.Secondly,the main causes of the problems in litigation relief are the lack of legal basis taking the legal relationship of administrative commitment as the object of litigation,the improper expansion of examination basis caused by the introduction of civil legal norms,and the confusion of examination methods caused by the unclear identification of administrative commitment.Finally,the causes of the problems in non-litigation relief are the imperfect provisions on the relief of the right of the counterpart of administrative commitment,the backward law enforcement concept of the administrative subject aiming at the relief of the right of the counterpart,and the weak awareness of the counterpart of administrative commitment to use administrative relief to defend his rights.Therefore,there are still some shortcomings in the legal relief of the relative rights of administrative commitment.To improve the relief of rights,we should analyze specific problems and put forward targeted measures.Therefore,the legal approach to solve the problem of the relative rights relief of administrative commitment in China can start from the accurate identification of administrative commitment,identify administrative commitment through comprehensive standards,avoid the confusion between administrative commitment and administrative agreement or civil commitment,and prevent the relief of rights from escaping from public law to private law.To solve the problems in litigation relief,we can reasonably apply the "two-tier judgment structure",regulate the supplementary interpretation range of legality review,and clarify the review methods of administrative commitment cases.Non-litigation remedy can also protect the rights of the counterpart of administrative commitment.Therefore,it is suggested to improve the way of administrative reconsideration,apply administrative compensation according to law and apply administrative compensation reasonably.To sum up,in order to promote the right relief of the counterpart of administrative commitment to run and develop on the legal track,we should take the accurate identification of administrative commitment as the starting point and improve litigation relief and non-litigation relief as the basic approach. |
