| An administrative agreement is an agreement signed between an administrative authority and a counterparty after equal consultation and agreement on both sides.Therefore,it has the dual attributes of "contractual" and "administrative".It should be pointed out that because the administrative agreement is dominated by the administrative authority,its "administrative" attribute occupies the dominant position.In the process of implementing the administrative agreement,the administrative authority is given the power to unilaterally modify or terminate the administrative agreement.However,it must be under the statutory conditions,that is,only under the circumstance where "serious damage may be caused to national interests or public interests".In practice,there are often a series of problems in the process of exercising the power of unilateral modification or termination,such as unclear conditions for exercising the power,hollow compensation system,abuse of power by the administrative authority,and procedural flaws in exercising power.China’s research on administrative agreements started relatively late,so we can construct a theory of unilateral modification and termination of administrative agreements that suits our country’s actual situation by drawing on and absorbing mature theories from other countries,for example,by clarifying the conditions for the administrative authority’s exercise of unilateral modification or termination of the agreement,specifying the compensation standard for the counterparty,and strengthening control over the procedural aspects of the administrative authority’s unilateral modification or termination power.Firstly,this article analyzes the concept of administrative agreements,as well as the mechanisms for unilateral amendment or termination rights.It outlines the current situations from legislative,academic research,and empirical research perspectives,and further compares the relevant regulations in France and Germany regarding unilateral amendment or termination rights.It then summarizes the theories that China can draw on and reference.Additionally,it provides a detailed introduction of important theories,such as the recognition of public interests,the requirements for exercising unilateral amendment or termination rights,and administrative compensation theory,and summarizes and generalizes them.Secondly,using literature research and empirical analysis,this article analyzes the existing legal provisions for the recognition standards of public interests,the standards for determining serious damage,the compensation rules for administrative compensation,and related procedures to identify the reasons for the difficulties faced by administrative agencies in exercising unilateral amendment or termination rights.Finally,it proposes suggestions for the improvement and preparation of administrative agencies in exercising unilateral amendment or termination rights.Finally,this article proposes countermeasures and suggestions for judicial practice issues.The severity of "serious damage" in exercising conditions can be determined by applying the proportionality principle.Public interest recognition can be determined by legislating the categorization or specifying measuring indicators,or issuing guiding cases.The French "principle of balancing interests" can be referred to in order to improve China’s system for administrative compensation or compensation.Unilateral amendment or termination rights should be used as a last resort to maintain their modesty.Referring to the German "Federal Administrative Procedure Act," China can draft its own"Administrative Procedure Law," and refer to relevant regulations in Germany to introduce consultation and its supporting systems to safeguard the rights of parties to the agreement. |
