Research On The Path Of Resolution Of Disputes Over Breach Of Contract By Counterparties In Administrative Agreements

Since China entered the 21st century,with the deepening reform of democratic government and service-oriented government,the administrative agreement has been widely used by various administrative subjects based on its characteristics of democratic consultation,and the emergence and subsequent evolution of administrative agreement have also led to the increasing disputes of administrative agreement.In the face of strong public power authority,the administrative relative person's rights and interests safeguard agreement problem at that time the focal point of the practice and administrative law,under the parties called for changes in 2014 "administrative procedural law" administrative agreement cases should be brought into the scope of accepting cases of administrative litigation,administrative agreement the other party of the right remedy to solve problems.But should not be ignored,the administrative proceedings the unidirectional construct exclude administrative subject of litigation,administrative agreement of the other party default case dispute mediation,administrative subject how to realize the administrative agreement to protect public interests or the interests of the state and other issues have become a was not seriously,not unified,standardized and important problem to be solved.Administrative subject in the face of the other party in the administrative agreement default situation,often take unilaterally terminate or modify the administrative agreement,filed a civil lawsuit accusing the compulsory execution,application methods such as settled around the court judgment standard is not unified,resulting in similar cases the different situation,and then make the officer of the people further intensify the contradictions and disputes can't be settled substantive administrative agreement.The administrative subject often represents the public interest.If the administrative agreement is not fulfilled,the public interest will be damaged.For this reason,the Supreme People's Court issued in December 2019,the Supreme People's Court about the provisions on some issues of administrative agreement cases(hereinafter referred to as the "administrative agreement judicial interpretation"),the other party default path of the dispute to administrative agreement is clear,the administrative subject can demand that the administrative agreement after the other party to administrative decision,on the basis of administrative decision apply to court for compulsory execution.The judicial interpretation of the administrative agreement points out the direction for the settlement of the dispute over the breach of contract of the relative party of the administrative agreement,but the ambiguity of the judicial interpretation of the administrative agreement itself will make the judicial practice departments have different understanding and application of the judicial interpretation of the administrative agreement.At the same time,in the one year since the implementation of the judicial interpretation of the administrative agreement,a total of 92 cases of non-lawsuit enforcement of the administrative agreement were found through the search of the judgment document network.Through a comprehensive review of the 92 cases retrieved from the aspects of the basis of application for execution,the applicable legal norms and the content of the execution granted by the ruling,it can be found that there are still several problems in the settlement of the disputes concerning the breach of contract of the counterpart of the administrative agreement.First,the basis of non-lawsuit compulsory execution is diverse and the judicial judgment is different.Second,the path of non-lawsuit compulsory execution is single,which reduces the execution efficiency;Third,the validity level of non-lawsuit compulsory execution is low,and the application possibility of the standard is low.In order to solve the new problems brought by the judicial interpretation administrative agreement,make the administrative agreement judicial interpretation to better play its proper role,should be clear from accusing the enforcement application conditions,clarify their claims and the relation between the administrative decision and optimize administrative agreement elaboration in three aspects: the judicial review case accusing the specific rules of compulsory execution path.In addition,in view of the single approach to the non-litigation compulsory execution standard,we should refer to the experience outside the territory,combined with the characteristics of China's own rule of law,and incorporate the rule of "voluntary acceptance of compulsory execution clause".Through the elaboration of the existing norms and the inclusion of new rules,private interests and public interests should be taken into account to the greatest extent,and the solution path for the default of the administrative agreement counterparts should be improved in a two-track manner,so as to promote the realization of the purpose of the administrative agreement and contribute to the healthy development of the administrative agreement system in China.