Research On Judicial Review Of Administrative Privileges In Administrative Agreements

In recent years,our country is constantly committed to the transformation from the management oriented government to the service-oriented government construction,and the administrative agreement as a flexible administrative management mode is also constantly developing.Administrative agreement refers to the agreement with rights and obligations in administrative law signed by the administrative organ and the counterpart in order to better serve the needs of public interests.It has the dual attributes of "administrative" and "agreement".The public welfare and administrative nature of the administrative agreement determines that the administrative organ needs to have the right of unilateral change and Rescission in the process of signing and performing the agreement.Any power without restriction may be abused.In fact,the administrative organs abuse the administrative preferential power and infringe on the private interests.Therefore,it is necessary to strengthen the judicial control of the preferential power in the administrative agreement.The amendment of the administrative procedure law in 2014,especially the promulgation of the judicial interpretation of the administrative agreement in 2019,has provided a clear normative basis for the judicial review of the preferential rights of the administrative agreement.In practice,the number of relevant cases accepted by the court for review is also increasing,and a series of unique review principles and rules have been formed,It plays an important role in preventing the abuse of power by administrative organs and relieving the rights and interests of the opposite party.However,through the analysis and understanding of the contradiction between the administrative preferential right and the spirit of the contract,we find that there are still many problems in the judicial review of the administrative agreement preferential right in our country;The examination intensity of the public interest in the exercise conditions is not enough,and the definition standard is not unified;The examination of exercise procedure is not strict;The nature of the right of alteration and rescission is unclear;The relief measures are not clear and the trial form is single.To solve the above problems,we should take the following measures: first,the fundamental measure is to give the court clear and detailed normative guidance on the review of cases.In the near future,we can issue administrative trial guidance cases or legal interpretations.In the long run,we should formulate a unified "administrative agreement law" and "administrative procedure law" as soon as possible;Secondly,we should unify the standards of public interest identification,strengthen the intensity of public interest review,and pay attention to the principle of trust protection and interest measurement;Third,strengthen the judicial review of the exercise of procedures,especially whether the administrative organs perform the procedures of informing,hearing,explaining the reasons,consulting and evading when exercising the right of administrative advantage;Fourth,if the exercise of the right of administrative priority damages the private rights and interests,it should pay attention to the protection of the spiritual interests of the opposite party in addition to the full monetary compensation;Fifthly,the nature of unilateral change and rescission of administrative agreement should be accurately identified,so as to clarify the applicable boundary of public and private law;Sixth,we should attach importance to the application of various forms of trial,substantially resolve disputes over administrative agreements,improve administrative and judicial efficiency,and effectively protect the rights and interests of citizens.