Research On The Identification Standard Of Administrative Agreement

With the changes in national tasks and governance concepts,the government has gradually reformed and innovated methods in Social governance methods.In addition to relying on public power means to carry out effective social governance,it also uses non-power means to promote administration more efficiently and meet the growing diversified needs of the people.As one of the more typical methods,administrative agreements have been widely used in various fields,and they have also become one of the topics of concern.While the academic circles have extensively discussed the judicial review mechanism of administrative agreements,,the basic issue of administrative agreements—identification standards is still controversial.At the end of 2019,the Supreme Court announced the judicial interpretation related to the administrative agreement(hereinafter referred to as the "interpretation").By defining the administrative agreement,the interpretation puts forward the "four elements" that constitute the administrative agreement.The case of Daying county government in Sichuan Province,a typical case of administrative agreement published in the same period,continues to put forward the theory of "two standards" on the basis of "four elements".However,this identification standard in the form of extraction and classification of public law elements has a limited effect on the judicial practice of the court,because of the inconsistency in the determination of the constituent elements and the subjectivity in the classification of element cases,it is easy to appear the situation that although it is a kind of case,the results are inconsistent in the identification of specific cases.The reason is that the integration of public law and private law makes the boundary fuzzy,and the factors of public law and private law are mixed in administrative agreement,which makes it difficult to define.The deeper reason lies in the confrontation between the pursuit of public and private values.To improve the existing identification standards for administrative agreements,it is mainly to find an independent core identification standard from the current comprehensive identification standards for the form of constituent elements.And the standard can respond to actual needs.With the expansive application of administrative agreements,it is not suitable to consider the administrative agreement only from the elements of administrative power.The theory of subject and the theory of purpose are currently two mainstream views in the academic circle.But the two are not directly unrelated,but are logically consistent.In the past,the exercise of public power was usually regarded as the cause of the change of administrative legal relationship.However,in the context of the integration of public and private law,administrative means towards two-way cooperation and negotiation softening,there is no obvious factor of public power,but the behavior with the purpose of public welfare will not necessarily lead to such changes.Therefore,this paper takes "administrative legal relationship" as the independent core identification standard,and takes the public power element as the priority,and the purpose element as the extension to judge.In the identification of the elements of administrative power,it is necessary to dynamically pay attention to the whole process of the conclusion and performance of the agreement;in the identification of the elements of purpose,in order to prevent the improper expansion of the scope of the administrative agreement,it is necessary to make technical treatment of the "purpose",which can be specified as "administrative responsibility",and consider its relevance with public services in combination with the functions and fields of the administrative agreement.