| With the deepening of the reform and opening up and the development of market economy,the field of public-private cooperation continues to expand,and the administrative agreement is more and more respected by all walks of life because of its flexibility and softness,which are different from other administrative management methods.Since the administrative agreement was listed as the accepting category of administrative litigation cases by the Administrative Procedure Law,the controversy about administrative agreements has become increasingly intense.Under the exploration and promotion of judicial practice,the Supreme People’s Court issued a judicial interpretation specifically targeting at administrative agreements(hereinafter referred to as the Judicial Interpretation of Administrative Agreements)in 2019,making more detailed provisions on the judicial review of administrative agreements.Administrative agreement has dual properties of administration and agreement,while there are natural contradictions between law-based administration and contract freedom,which means that the value conflict between public law norms and private law norms must be placed in the administrative agreement.Due to the limitation of the existing legal system framework,the existing path contradictions and incompatibilities in the process of constructing the administrative agreement litigation system will not be resolved naturally with the introduction of judicial interpretation.There are still great disputes on the identification standards,scope of accepting cases and application of law of administrative agreement,which are inevitable problems for realizing comprehensive and fair trial and substantially resolving the disputes of administrative agreement.The theory of the dual distinction between public law and private law has been deeply rooted in people’s hearts,and has developed and formed different legal systems in their respective fields.Administrative agreement is the behavior of both parties across the field of public and private law,which can not be directly applied to the norms of public law or private law,so it is crucial to construct a set of trial rules in accordance with it.Considering that the administrative nature of the administrative agreement is not as good as the general unilateral administrative act,and its contractual nature is not as good as the civil contract.Administrative agreement should not only emphasize the protection of social public interests,but also pay attention to the protection of private legitimate rights and interests.Therefore it is necessary to find the place where the public law norms and private law norms are integrated,and improve the system of the public and private law integration of the administrative agreement.Theoretically,public and private law shows a trend from differentiation to integration;In practice,public-private cooperation is becoming more frequent.The discussion on the dispute of administrative agreements has both theoretical significance and practical demand.The paper first introduces the theoretical background of integration of public law and private law,and analyzes the trend,inevitability and possibility of the integration of public and private law.Then,from the perspective of administrative agreement in practice,the paper draws lessons from the relevant provisions of different countries and regions,and traces back to the legal provisions of administrative agreement in China,and sums up the identification standard and scope of accepting cases of administrative agreements.After that,combining with the concrete problems in judicial practice,and matching the value conflict of administrative and agreement nature of administrative agreements,and the interweavement and concurrence of legitimacy review and contract review with the public and private law,the paper tries to explore the necessity and possibility of the integration of legal principles and rules of public law and private law in a certain field,and look for the common factor of public and private law.Finally,the paper extends to the specific problem of the public and private law accommodation,and explores the comprehensive path of the public and private law accommodation system of the administrative agreement and puts forward some tentative suggestions.In the process of perfecting related systems about administrative agreement,judicial review should play its role,and balance relationship between social public interests and private lawful interests.Also it should maximize social value identity and make administrative agreement shining on the stage of public-private cooperation,and better promote the building of a diversified and co-operating social governance structure. |
