On The Scope Of Administrative Agreement

In the context of the transformation of government functions and the development of public-private cooperation,the use of administrative agreements in practice is gradually becoming more and more extensive.The promulgation of the “ Provisions on Several Issues Concerning the Trial of Administrative Agreement Cases ” in 2019 defines the concept and scope of administrative agreement,which provides guidance for the identification of administrative agreement in judicial practice.However,the issue of the delineation of the scope of administrative agreement has aroused heated discussion in theoretical circles.Through the normative and practical analysis of the scope of the current administrative agreement,it can be found that the type of administrative agreement established by judicial practice is far wider than the scope stipulated by law and judicial interpretation.There are still disputes in the theoretical and practical circles about the identification of the nature of some agreements,and there are still differences in the delineation of the boundary of administrative agreement.The reason lies in the vague identification standard of the current administrative agreement,the lack of practical operability,the wide scope of the administrative agreement and the conflict between the government and the market.On the basis of discussing the scope of administrative agreement in theory and judicial practice,this paper takes the administrative boundary as the key to determine the scope of administrative agreement,takes the public interest as the value pursuit of administrative agreement,grasps the relationship between administrative and market nature of administrative agreement,the relationship between government and market,clarifies the rules of law application,and revises the judgment of content elements in the current judicial interpretation administrative agreement recognition standard from the aspects of agreement content involving administrative priority rights,agreement content exceeding civil contract rules and the realization of administrative objectives,so as to make it more practical and operable.At the same time,the exclusion of legal provisions from concluding agreements and governmental exclusive functions from the scope of administrative agreements and the enumeration of the types of administrative agreements commonly disputed in practice make judicial practice more clear and practical.