Research On The System Of Revocation Of Administrative Agreement

Whether administrative agreements are revocable or not varies from country to country and from region to region in judicial practice.At present,there are mainly two types of practices: first,only the administrative agreement is clearly provided for the va1 idity and invalidity of the validity of the administrative agreement,without providing for the revocability of the administrative agreement,but provides for the “civil law applicab1e” provisions,that is,“negative theory’’,such as Germany and Chinese Taiwan.Secondly,administrative agreements are not only 1imited to validity or invalidity,but a1 so revocable and va1 idity pending,i.e." affirmative theory",such as Portugal and Chinese Macao.The existence of revocable administrative agreements in China has been debated for a long time,and the main focus of the debate is whether there is a need for the setting up of the administrative agreement revocation system.Although there have been cases of administrative agreement revocation judgments made in judicial practice since the administrative agreement was inc1 uded in the scope of administrative 1itigation in 2014,the 1ega1 basis chosen to be applied by each court varies due to the lack of clear provisions in the law.Unti1 2019,China formally provided for the administrative agreement revocable system,from the provisions of the Supreme Court can be concluded that the administrative agreement has dual attributes,because the provisions not only clarify that judges should apply administrative 1egal norms when hearing administrative agreement cases also proposed that civi1 1ega1 norms can be applied.However,due to the unclear provisions,there are still many problems with the revocation system of administrative agreements in China.Through the normative analysis and case study method,it is found that the following problems still exist in the current administrative agreement revocation system:(1)it is difficult to app1 y the provisions of the right of revocation requested by the relative.Since the administrative relator’s right to revoke based on fraud,duress and other reasons requires the administrative relator to prove himself,So there are certain difficulties in judicia1 practice;(2)the configuration of the right to revoke administrative agreements is unclear.The administrative agreement case provisions clarify the administrative relative has the right to request revocation,but does not provide for the administrative subject and the right of revocation of the interested third party;(3)whether the general illega1 administrative agreement can be revoked is unclear.Significant and obviously i11ega1 administrative agreement is invalid,the administrative subject to exercise the right of administrative benefit is illega1 and can be revoked,whether the illega1 administrative agreement can be revoked is unclear;(4)civil contract and administrative act revocation standards are mixed.In judicial practice,due to the dual attributes of administrative agreements,there is often a case can be simultaneously applied to the revocation standards of civi1 contracts and administrative acts,and there is no definite order of application.In view of the current situation of the administrative agreement revocation system,the article proposes that in the case of difficu1 ties in applying the provisions of the administrative relator’ s right to request revocation,the judge should adhere to the principle of weighing interests and make a decision by integrating the interests of all parties.For example,in the case of difficulties in proving fraud and coercion,the court can adopt the method of reversing the burden of proof,and if the administrative subject cannot prove that he or she is not at fault,the court presumes that he or she is at fault.In addition,the administrative subject should not be given the right to revoke the agreement,should be given to the third party to request the right to revoke the agreement.In the administrative agreement,the administrative organ has the power to change and cancel the administrative agreement under specific circumstances,if the administrative subject is then given the right to revoke the agreement is not conducive to the protection of the rights of the administrative counterpart.According to the relevant cases issued by the People’ s Court,the interested third party should enjoy the right of revocation and can file a 1awsuit of revocation on the administrative agreement.According to the existing 1aws,administrative agreements with defects can be revoked,citing the light to show the heavy,then the illega1 administrative agreements should be revoked a11 the more,so the provisions that illegal administrative acts can be revoked can be applied.The civil 1egal norms and administrative acts revocable standards should be distinguished,and the administrative 1egal norms should be applied in priority,with the civil 1egal norms as a supplement.