Research On Identification Standard Of Administrative Agreement

In theory,there are formal standards,substantive standards,and comprehensive standards for the identification of administrative agreements.Substantive standards and comprehensive standards are more widely accepted;courts at different levels in judicial practice have different views on the identification of administrative agreements.The Supreme People’s Court There are differences between judges’ opinions and current judicial interpretations,and there are differences in judicial practice.Combining the analysis of theory and practice,the unified rules for the identification of administrative agreements are constructed through the theory of proximate cause,so as to solve the disconnection between theory and practice.First,the inconsistency of theoretical tools makes it impossible to construct a systematic and solid theoretical foundation for administrative agreements.Due to the lack of unified theoretical tools,the nature of administrative agreements cannot be identified.There are different theories and viewpoints on the identification of administrative agreements.These theories and viewpoints have certain limitations and cannot meet the practical needs of administrative agreements.The inconsistency of theory leads to differences in judicial practice,the particularity of the dual nature of administrative agreements makes it difficult to determine the scope of review of administrative agreements,and judges hold different standards for the determination of administrative agreements,resulting in inconsistent judgment scales for the same case.Secondly,the root cause of the difficulty in identifying administrative agreements is that their standards are unclear.The essence of administrative agreements is an administrative administrative act,and its difference from the essential characteristics of civil contracts is the nature of "administrative nature",and its "administrative nature" is reflected in administrative powers,administrative privileges,public interests,etc.Because the connotation and extension of "administrative" are abstract,it cannot be clearly defined,which makes the identification of administrative agreements more and more complicated.The clarification of identification elements is the basis for the unification of identification standards.The current judicial interpretation has established four elements of subject,content,purpose,and meaning expression.On the one hand,these four elements cannot meet the needs of practice,and on the other hand,there are academic disputes.Finally,through the theory of proximate cause to construct the theoretical framework of identification,unify the standard of identification,based on the causal chain of the contract,look for the nearest,effective and dominant reason to identify the administrative agreement.If the most recent reason reflects administrative management and public interests,it is an administrative agreement;if the most recent reason reflects more market factors,the agreement between the two parties is a civil contract.The administrative agreement has the basis of the contract,and the proximate cause theory is the contract theory,which is the space where the theory of private law is applied to the public law,which conforms to the dual attributes of the administrative agreement.Proximity theory clarifies the orientation of "administrative" and "contractual" of administrative agreement,forms unified identification rules,and breaks through the limitation of using elements as the basis for identification.The identification standard established by the theory of proximate causes conforms to the principles of philosophy,captures the main contradiction of things,and effectively solves the problem of the inconsistency between theory and judicial practice.