On The Judicial Review Of Administrative Privileges In Administrative Agreements

The construction of a service-oriented government is the basic direction for the transformation of government functions,Administrative agreements meet the needs of social change and development.As a controversial legal system in administrative doctrine,administrative agreements are currently regarded as "tools for achieving governance strategies" and play an important role in reconciling public law and private law,which is defined as "an agreement of the will of an administrative authority with legal superiority,on the one hand,and,on the other hand,a system in which other legal subjects aim to satisfy the general interest by providing public services or enhancing public goods but are subject to administrative power.It is defined as "a system in which other subjects of law aim to satisfy the general interest by providing public services or enhancing public goods,but are subject to administrative power".Administrative superiority as the core content of the administrative agreement,which can only be enjoyed by one of the administrative subjects,aims to be able to ensure the smooth implementation of the administrative agreement,to achieve more effective management of public affairs,and thus to safeguard the public interest.Since the new administrative litigation law came into effect,the dispute cases around the administrative right to benefit have been flooded into the court,and the judicial review of them has promoted the benign development of the administrative agreement system,but many problems exposed in the judicial practice need to be further solved.On the one hand,the relevant legislation in China is still not perfect for the judicial review of administrative agreements,and the imperfect legal system leads to the low operability of the courts;on the other hand,the theoretical research on the right of administrative preference in administrative agreements is relatively insufficient,and the theory cannot meet the needs of the judicial practice.Therefore,it is necessary for academics to refine and study the content of administrative agreements,enrich the theoretical content of the right of administrative preference,effectively play the role of the new administrative management mode of administrative agreements in social governance,and at the same time regulate the abuse of administrative preference by administrative subjects,to achieve a win-win situation between social interests and private interests.Firstly,this paper starts from the basic theory of the administrative right of merit in administrative agreements,summarizes the theoretical research on the definition,characteristics and specific contents of the administrative right of merit in the academic field,and affirms the necessity of the administrative right of merit from the perspective of its administrative nature and public interest.Secondly,through specific judicial cases,we summarize the current situation of judicial review of administrative right of merit in China from three aspects of normative basis,scope and standard of judicial review,so as to discover the general problems behind.Again,the traditional principles of legality and reasonableness of specific administrative acts combined with the principle of economic balance as the principle of originality of administrative agreements are used to provide guidance for the judicial review of the right of administrative preference.Finally,it is proposed that the judiciary should strengthen the review of the specific content of the right of administrative benefit,improve the basis of judicial review,improve the review of public interest,and clarify the application of civil legal norms when judicial review is appropriate,in order to expect the continuous improvement of the theory of judicial review of the right of administrative benefit in administrative agreements.