A Study On Illegal But Valid Administrative Agreements

As a new way of administrative management,administrative agreement is the embodiment of the new development concept of modern social service administration and payment administration.In order to better realize the purpose of the agreement,it is extremely important to confirm the effectiveness of the administrative agreement.Although the legal administrative agreement is effective,when the administrative agreement has illegal causes,the current legislation also makes clear the invalid or revocable situation of the agreement.However,combining relevant provisions and judicial practice,it can be found that it is obviously inappropriate to negate the effectiveness of all illegal administrative agreements,and thus "illegal but effective" administrative agreements appear.However,the relevant legal concepts and rules about the effectiveness of administrative agreements are still not very clear.As the cases of illegal administrative agreements being retained become more and more frequent,the existing theories and legal norms are far from sufficient to support the further development of the review of illegal but effective administrative agreements.Therefore,in practice,the same case and different sentences often appear.That is,some of the administrative agreements with similar illegal circumstances are retained and continued to perform,while others are negated,adjudicated invalid or revoked.Moreover,even if the court decides to preserve the effect of the administrative agreement in order to protect the public interest,some cases are too reluctantly justified.In this regard,this paper discusses and studies the illegal but effective administrative agreements from the case,in order to enrich the relevant theories and put forward optimization suggestions for the review and identification of such administrative agreements in judicial practice.The administrative agreement has dual attributes,and its unique agreement makes the court have to pay attention to the review of its effectiveness.However,the Judicial Interpretation of Administrative Agreement still has the problem of ambiguity concerning the effectiveness of administrative agreement,which is not very clear.Therefore,even if there is a legal basis,judges still have different judgment results for similar cases.In the case that the effectiveness of administrative agreements should not be denied,in order to promote the achievement of administrative purposes,the court often needs to maintain the effectiveness and stability of administrative agreements.In addition,administrative agreement is an administrative act in essence,so the relevant theories of the validity identification of administrative act are naturally the basis of the validity judgment of administrative agreement.Under this background,illegal but effective administrative agreement came into being.Since there is no special research on the illegal but effective administrative agreement in the academic circle,this paper defines the connotation of the illegal but effective administrative agreement by combining the administrative law theory and judicial practice,and discusses the necessity of its existence.So far,although there is no relevant theoretical research and legal norms to regulate the illegal but effective administrative agreement,it has been frequently seen in judicial practice.However,through the analysis of cases,it can be found that the absence of theoretical basis and legal norms limits the progress of the theory and practice of illegal but effective administrative agreements.This paper starts from the specific cases,combined with the idea of the legality review of administrative acts,will be retained in practice of illegal administrative agreement cases classified discussion.For the cases with slight defects in the administrative agreement,the court usually corrects the situation of the administrative agreement and urges the administrative organ to make corrections.In cases where some provisions of an administrative agreement are illegal and invalid,if this part can be independent from other parts and does not affect the purpose of the administrative agreement,the other parts of the agreement may continue to be valid.The court’s review and judgment ideas for these two types of cases are relatively consistent,and there are corresponding principles or rules in the entity specification.However,the other three illegal situations more or less cause the court to fall into certain difficulties in the review process.For the administrative agreement with illegal contracting subject,the court often determines the validity of the administrative agreement with the reason that the authority of the illegal contracting subject has been ratified.However,the court does not have a clear standard on what administrative authority can be ratified under illegal circumstances.This paper holds that it is possible to discuss whether there is a possibility of ratification after analyzing whether the illegal situation of the contracting administrative subject belongs to the situation of not having the power or exceeding the power,and then judge whether the illegal administrative agreement has the possibility of continuing to be effective.When the procedure of making administrative agreement is illegal,it is often difficult to measure the degree of illegal procedure.Therefore,the court can judge the validity of the illegal administrative agreement by referring to the relevant rules of the illegal administrative act procedure and combining with the interest measurement of the interested parties of the administrative agreement.Finally,through case analysis,it can be known that when the content of administrative agreement is illegal,the court usually applies civil legal norms to review it,but the essence of administrative agreement is an administrative act,so the basis for judging the effectiveness of administrative agreement cannot be limited to laws and administrative regulations.It is also worth noting that administrative agreements,even if they violate a regulatory mandate,do not retain their effect in all cases of violation.