Research On Administrative Privilege And Its Existing Problems In Administrative Agreement

Administrative agreement is the product of the combination of public law and private law,which not only embodies the "administrative" but also "agreement".Therefore,in the process of signing and performing administrative agreements,in order to ensure the final realization of public interests,the administrative parties enjoy the right of administrative advantage and benefit based on the administrative agreement.However,the exercise of the right of administrative advantage and benefit directly affects the rights of the administrative counterpart.Once it is improperly exercised,it will cause damage to the interests of the administrative counterpart.Therefore,it is necessary to ensure that the administrative subject always correctly exercises the right of administrative advantage and benefit on the track of rule of law.But throughout the legislation of our country,the provisions of the administrative superior and beneficial rights system in administrative agreements mostly exist in some lower level and narrow application of laws and regulations,lacking systematic and clear.Based on the above reasons,this paper analyzes the problems of the administrative advantage and benefit right in the administrative agreement from the theoretical and judicial practice,and combs out the following deficiencies in the theoretical level of the administrative advantage right in the administrative agreement in China:(1)the content of the administrative advantage right lacks systematic provisions.(2)The procedure of exercising the right of administrative advantage and benefit is not clear and concrete.(3)The remedy way and judicial review system of administrative superior interest right are not perfect.The judicial practice has resulted in the abuse of administrative advantage right and negative non application of administrative superior right,vague compensation for administrative counterpart,different attitude of court to the recognition of administrative advantage right,different standards of examination of administrative advantage right.In order to solve the above problems and problems,the rational use of the administrative advantage and benefit right can be realized.It can refer to the regulations and application of the foreign countries on the administrative advantage right,and combine with the actual situation of our country to regulate the administrative advantage right from the following aspects.(1)The content of administrative advantage right in administrative agreement in China is improved,including the content of administrative advantage right,the boundary of exercise and the provisions of compensation measures.(2)We should improve the procedural system of administrative advantage and benefit right in administrative agreement,such as the system of notification,consultation and hearing,and avoidance system.(3)The non litigation relief way of administrative superior and beneficial right in administrative agreement should be improved,including consultation and reconsideration.(4)We should improve the judicial review system of the administrative superior interest right in administrative agreement,such as clarifying the specific rules of compensation and constructing two-way litigation mode.