Remedies For The Breach Of Contract By The Relative Person Of Administrative Contract

Administrative contract is a new way of administrative management essential to modern political civilization.Administrative agreement is both administrative and consensual,when the parties have disputes over administrative agreement,its administrative nature leads to insufficient theoretical basis for the litigation resolution path,while its consensual nature makes insufficient theoretical basis for the non-litigation enforcement resolution path,thus making it tricky and easy to get into trouble when dealing with administrative agreement disputes.The Administrative Litigation Law was amended by the Standing Committee of the National People’s Congress in 2015 to include administrative agreements into the scope of administrative litigation,so that administrative relators can get more relief when their legitimate rights and interests are infringed.However,there is no corresponding legal provision on what effective measures should be taken by the administrative organ for the breach of the administrative agreement.In practice,when the administrative agreement is breached,the administrative organs usually use the exercise of the right to unilateral release or change,file civil lawsuits,apply for non-litigation enforcement measures to resolve,but due to the inconsistent standards of local courts,resulting in similar cases with very different decisions,thus intensifying the conflict between the government and the people,administrative agreement disputes are difficult to be fundamentally resolved.Until 2019,the Supreme People’s Court clearly stipulated the path of non-litigation enforcement,indicating the direction of resolving such disputes.However,the ambiguity of the provision itself makes the judicial practice departments understand and apply it differently,resulting in the handling of the breach of the administrative agreement by the counterparty after the implementation of the provision still suffers from inconsistent basis of enforcement,low efficiency of enforcement and difficulties in putting it into practice.In order to solve the current problems and better play the role of the legal explanation of administrative contracts,the non-litigation enforcement basis,improve the judicial review and the clear separation of enforcement should be optimized from three aspects of the non-contentious enforcement route.The non-contentious enforcement route is the affirmation and support of the administrative subject’s right to exercise the right of administrative benefit,with high feasibility,and can better adapt to the actual needs under the current legal system.However,the path also has its limitations,in the long run,the establishment of additional authorities litigation form,can make the administrative subject in the agreement of the relative default directly to judicial remedies,rather than through an intermediate process of system transformation.Reverse administrative litigation is in line with the concept of equality of arms and the purpose of administrative litigation,supported by a wealth of extraterritorial experience,considering the dual nature of administrative contracts,is the implementation of theoretical and institutional innovation on the basis of adherence to the inherent concept of administrative litigation,in administrative agreements,the administrative organ to apply for court enforcement,to preserve the legitimate interests of the administration have irreplaceable advantages,can systematically litigation The scope,prosecution period,burden of proof,review structure,and type of judgment can be systematically designed.By optimizing the existing non-litigation enforcement path and constructing the reverse administrative litigation structure,we can maximize the balance between private and public interests,improve the handling of administrative agreement relators’ breach of contract in a two-pronged way,promote the realization of administrative agreement goals,and help China’s administrative agreement system to develop in a more healthy and benign direction.