A Study On The Judgment Standard Of Administrative Agreement

Since the Provisions of the Supreme People’s Court on Several Issues concerning the Trial of Administrative Agreement Cases came into effect in 2020,the application of administrative agreement has become more and more extensive,and the number of cases involving administrative agreement is increasing day by day,and problems have followed,among which the identification of administrative agreement is the most urgent.Although "judicial Interpretation of administrative agreement" has tried to make clear provisions on administrative agreement through the way of "generalization,enumeration and exclusion",the judicial practice since the implementation of nearly one year shows that the judgment of administrative agreement is still in a state of confusion,and it is still of practical significance to clarify the judgment standard of administrative agreement."Agreement of administrative judicial interpretation" will be the aim,content and meaning,the essential condition of four elements as constituting administrative agreement,namely legislation will be integrated as an administrative agreement judgment standard,and in the judicial practice,different judges are more used to case analysis,both with a single element such as the main factor,objective factor as the standard of judgment,There is also the choice of several elements of the combination of comprehensive judgment.At the same time,in the theoretical circle,different scholars also have different views on the judgment standard of administrative agreement,which is the same as in judicial practice and can also be divided into two theories of single standard and comprehensive standard,which cannot provide better guidance for practice.Such confusion will lead to the inability to accurately identify the administrative agreement,hinder the play of the function of the administrative agreement,and even in judicial practice,prone to the phenomenon of different judgments in the same case,affecting judicial justice,and unable to strike a balance between public interests and private legitimate rights and interests.The reason why it is difficult to judge the administrative agreement lies in the dual attributes of the administrative agreement.As the product of the fusion of public and private,there are both differences and connections between the administrative agreement and the civil contract.Only by finding out the essential differences between the administrative agreement and the civil contract can we effectively identify the administrative agreement.Although the single standard is committed to finding the core differences,it has its own limitations in the judgment process of administrative agreements,and is often supplemented by other elements in the actual operation.Therefore,comprehensive standards should be adopted to meet the practical needs.However,most of the existing comprehensive standards are just a simple list of different elements,lacking a certain logical structure.Therefore,it is more reasonable to adopt the comprehensive standard of formal review followed by substantive review into the judgment of administrative agreement,which is not only convenient for practical operation,but also prevents the administrative agreement from escaping to private law.Among them,through the main body of the agreement to conclude the diversion,the first administrative main body concluded the agreement together into the scope of administrative review,and then for the private main body concluded between the agreement combined with the objective elements of the review,to prevent the administrative main body hidden behind the private main body,complete the preliminary form of the agreement review;Then the content of the agreement is substantially examined and the role of public power is the essential difference between administrative agreement and civil contract in content.In order to realize the greater value of the administrative agreement,this paper puts forward the judgment standard of the administrative agreement,which takes the subject and objective elements as the formal standard and the role of public power as the substantive standard.