Research On The Identification Standard Of Administrative Agreement

As a new governance mode,administrative agreement has been widely used in the field of contemporary administration,but there has been no unified opinion on its criterion of identification.The academic circles mainly draw lessons from the administrative contract system of Germany and France,and have their own different interest needs,and put forward a variety of different theories,but because they failed to deeply understand the theoretical basis of the formation of the administrative contract system of these two countries,most of these theories have internal contradictions and lack of selfconsistency.In the "Daying case",a typical case released by the Supreme People’s Court in 2017,the identification model of "five elements + two standards + three judgments" was proposed.However,this model has not been fully used in practice because of the repetition of elements,standards and judgments in this model and the lack of clarity in specific identification.In 2019,the Supreme Court issued a special interpretation of the administrative agreement,but there are still many internal contradictions in this interpretation.The issue of the identification standard of the administrative agreement,which is the subject of numerous lawsuits in the legal and practical circles,has not become clear because of this special legislation.In order to unify the identification standard of administrative agreement to determine jurisdiction and legal application,this paper introduces the thinking caused by the administrative agreements recognition criteria determined by "Daying case",sorts out and analyzes the theoretical and practical status of administrative agreement identification standard,and interprets the judicial interpretation of the current identification standard of relevant administrative agreement.Then,based on the current situation,the main problems existing in the identification criterion of administrative agreement are summarized and analyzed,so as to clarify the significance of the unified identification standard.Then from the perspective of comparative law,the mature experience outside the country is investigated and enlightenment is drawn.Finally,aiming at solving the problems existing in the administrative agreement identification standard,combined with domestic empirical case analysis and outside experience,this paper tries to define the administrative agreement as an agreement between administrative organs and other subjects based on consensus and reflecting the content of official characteristics.Through clarifying the scope of subject and identity relationship of the administrative agreement,including the content of the agreement reflecting the official characteristics,and the expression of the intention reached on the basis of consensus,the unified identification standard of "subject + content +consensus" as the selection node is proposed.