Study On Judicial Review Of Invalid Administrative Agreements

Although the Administrative Procedure Law and the judicial interpretation include administrative agreements into the scope of administrative litigation,there is no specific and explicit provision for judicial review of administrative agreement invalidation,which,coupled with the mixed nature of administrative agreements,has caused many problems in judicial review of administrative agreement invalidation.Through the sorting of cases,it is found that in the cases requesting to confirm the invalidity of administrative agreements,there are two ways for the court to review:(1)the prosecution period-whether it is an administrative agreement-the validity of the agreement;(2)whether it is an administrative agreement--validity of the agreement--period of prosecution.First of all,the reason for the above two review order,from the request to confirm the administrative agreement invalid litigation period of prosecution in judicial practice is divided.Therefore,in order to unify the order of judicial review of the invalidation of administrative agreements,the first should solve the problem of the prosecution period of the administrative agreement invalidation lawsuit.As the legislation does not clarify whether the administrative agreement is invalid to be limited by the prosecution period,resulting in a lot of controversy in theory and judicial practice.Administrative agreement invalidation has the characteristics of both specific administrative act invalidation and civil contract invalidation,so it can be combined with the two to compare the study,and thus put forward the judicial review of the administrative agreement invalidation,should break the basic position of the limit of the prosecution period.Then,based on the other attributes of administrative agreement invalidation,it is deduced that the basic rule of giving priority to the review of invalid entities should be adopted when reviewing administrative agreement invalidation cases.Second,the choice of public and private law rules is the cornerstone of judicial review of administrative agreement invalidation.In practice,there are differences between courts on the choice of public and private law for judicial review of administrative agreement invalidation: some courts choose public law rules alone,some courts choose private law rules alone,and some courts choose a combination of both.However,there is a conflict between public and private law rules in terms of value orientation,and neither public law rules alone nor private law rules alone can meet the judicial review of administrative agreement invalidation.Therefore,based on the dual attributes of administrative agreements,both public and private law rules should be selected.Finally,if the court chooses both the public and private law regimes then judicial review of the invalidity of the administrative agreement is made.The biggest difficulty of combining the two sets of rules is that when there is contradiction and overlap between the facts of invalidation under the public and private law regimes,the people’s courts are very prone to abuse judicial discretion in the absence of express judicial provisions.Therefore,the fusion of the causes of invalidity in public and private law should be realized according to the common points of the two sets of rules.To sum up,the court hearing the administrative agreement invalidation case faces the difficulties of whether it is limited by the prosecution period,the confusion of the choice of public and private law and the lack of clarity of the specific invalidation subject matter.To this end,this paper summarizes the main problems in the judicial review of administrative agreement invalidation in three modules by searching cases about administrative agreement invalidation on China Judicial Documents Online,and analyzes the causes of them in depth,and then makes suggestions to improve the judicial review system of administrative agreement invalidation.