A Study On The Application Of Reverse Administrative Litigation System To Administrative Agreements In China

The administrative agreement signed between the administrative subject and the administrative counterpart,according to the intention of both parties,has the characteristics of affirmative administrative legal relationship,both administrative and contractual.The2014 "Administrative Litigation Law of the People’s Republic of China" will bring the administrative agreement into the jurisdiction,subject to the "civil suiting against the government" of the one-way litigation structure.However,as a constitutional right,the administrative appeal does not distinguish between the nature of the case in administrative litigation cases.It focuses solely on the administrative right of appeal of the administrative counterpart,the administrative right of appeal of the administrative organs to limit the administrative organs.This is not conducive to the administrative organ to perform the duty of serving the people,and is not conducive to the administrative organ and the balance of interests between the administrative counterpart.At the same time,the civil lawsuit filed by the administrative organ against the administrative relative’s breach of contract tends to make the administrative power out of the supervision of administrative litigation.Therefore,in practice,there are administrative agreement cases after the trial,the contradiction has not been substantially resolved.In the administrative agreement cases,the administrative organs and the relative position of relative equality,which provides the possibility for the realization of the two sides of the administrative right of appeal.Therefore,in China’s academic research how to solve the problem of administrative agreement disputes,more mentioned the use of reverse administrative litigation system to build a two-way administrative agreement litigation model as a solution.The administrative organs take the initiative to choose the judicial procedure to deal with the agreement dispute,can to a certain extent reduce the abuse of administrative preferential rights,to protect the legitimate rights and interests of both sides of the agreement.If the reverse administrative litigation system is applied in the administrative agreement litigation,the administrative organ should be given the qualification of plaintiff in a certain range in the field of administrative agreement and the follow-up procedure should be adjusted.At present,the reverse administrative litigation has been more adequate practical experience in foreign countries,so we can discuss the feasibility of applying the reverse administrative litigation system in the field of administrative agreements in China,and analyze the scope of the system or can be applied.The first part of this paper introduces two basic structures in administrative litigation,introduces the two-way litigation structure and the one-way litigation structure.It points out that China’s one-way administrative litigation legislation structure originates from historical legislative practice and the German concept of administrative disposition,among other factors.It concludes that the emergence of a reverse administrative litigation system has some value.The second part lists the current situation of administrative agreement litigation in China,including the application of the one-way litigation structure,the phenomenon that some cases flowing into civil litigation and the tendency of administrative organs to seek litigation remedies,and so forth.It also analyzes the current difficulties faced by administrative agreement litigation in China,such as the one-way litigation structure not meeting the real needs and being prone to the abuse of administrative preferential rights,along with the reasons for these difficulties.It clarifies the view that administrative agreements are not fully compatible with the one-way litigation structure and proposes the idea of introducing reverse administrative litigation to improve the administrative agreement litigation system in China.The third chapter is a study of the experience of countries(regions)with reverse administrative litigation practice,introducing the scope of administrative agreement litigation,the plaintiff’s qualifications and relevant legislation in the United States,France and Germany.By comparing these practices,and referring to the actual situation in China,the application of the reverse administrative litigation system to resolve administrative agreement disputes in China has a certain reasonableness.On the basis,China can learn from the jurisprudence of German administrative contract and the practice of France to apply reverse administrative litigation conditionally in the field of administrative agreement.The fourth part explains the feasibility of applying the reverse administrative litigation system from the theoretical basis of administrative agreements and administrative litigation,the needs of the development of the administrative agreement litigation system,and the demands of litigation practice.This includes the dual attributes of administrative agreements and related litigation principles,the institutional basis existing in administrative litigation,and the supportive studies of the academic community.The fifth part proposes a concrete idea of applying the reverse administrative litigation system under certain conditions and constructing a two-way litigation model in special fields.It suggests China can improve the judicial relief mechanism of administrative agreements in five ways,including applying the reverse administrative litigation system within the scope of general payment litigation,granting and limiting the plaintiff status of administrative organs,improving the principles of examination and the allocation of the burden of proof,expanding the types of judgments in administrative agreement litigation,and improving the mediation procedure of administrative agreement disputes.