| Administrative agreement,a contract entered into consensually between the government and the counterpart to achieve the goals of public management and services,is an important mode of governance in which the government and society carry out cooperative and shared governance on economic and social affairs.In 2014,the amended Administrative Litigation Law of the People’s Republic of China(hereinafter referred to as "Administrative Litigation Law")included administrative agreements in the scope of cases.2019,the Supreme People’s Court issued the "Provisions on Several Issues Concerning the Trial of Administrative Agreement Cases"(hereinafter referred to as "Judicial Provisions on Administrative Agreements").(hereinafter: "Judicial Interpretation of Administrative Agreements"),which clarifies the definition,scope,qualification of litigation subjects and validity of administrative agreements.At the central legislative level,the norms of administrative agreements in administrative law are scattered in various individual laws,and the content is scattered and not detailed.Although the relevant rules in civil law are clearly applicable to administrative agreements,they are not directly applicable to administrative agreements due to the differences in the basic principles,legal relations and regulatory objectives of public and private law contracts.Even if the Supreme People’s Court has issued a relatively systematic Judicial Interpretation of Administrative Agreements,its use in regulating administrative agreements has problems of legitimacy: first,under the framework of the basic political system of the People’s Congress in China,the judiciary has a different status and function from the legislature,and judicial interpretation cannot replace legislation;second,judicial interpretation can only respond to solve litigation problems in trials,but has no right to create substantive content.At the level of local legislation,the norms of administrative agreements are mainly stipulated in the provisions of administrative procedures in different places,which show a distinct tendency of local and departmental protectionism due to the inconsistency of legislative subjects and legislative objectives,and there are also mutual contradictions between different levels of legislation.At the level of system operation,the decentralized legislation of the central and local governments has led to corresponding implementation dilemmas: first,in the process of administrative agreements,the general lack of administrative standards in accordance with the law has led to frequent illegal phenomena of non-compliance and abuse of preferential rights by the government;second,in the process of judicial adjudication,due to the inconsistent standards of legal application and irregular exercise of discretionary power,"different judgments in the same case " trial disagreements occur from time to time.The "Implementation Outline for the Construction of a Government Ruled by Law(2021-2025)" issued by my country in 2021 requires "improving the administrative system according to law".As an emerging administrative management method,administrative agreement is an important method for the construction of a rule of law society.It is an important part of the standardized,procedural,and legalized governance,and it also plays a preparatory and foreshadowing role in the overall process of promoting administrative codification.This paper takes "On the Construction of my country’s Unified Administrative Agreement System" as the topic,attempts to clear the cognitive fog of administrative agreements in theory and practice,and proposes the "Legislative Interpretation of Administrative Agreements" formulated by the National People’s Congress as the final solution.The first chapter is "the status quo and inconsistency of my country’s administrative agreement system".Administrative agreement is not only a negotiation agreement on the basis of equality and voluntariness between the two parties,but also controlled by administrative power.It is an administrative act involving civil factors.Its subject and legal relationship are complex,its purpose is dual,and its content is complex.Due to the lack of pertinence of the civil law,the lack of administrative legal regulation,and the insufficient legitimacy of the subrogation legislative function of the "Judicial Interpretation of Administrative Agreements",the current administrative agreement system has a platter-like structure of "single law appearance + public-private mix".Inconsistent processes and standards for local implementation of agreements and inconsistent benchmarks for judicial discretion are prominent.The inconsistency of the administrative agreement system is not conducive to creating a fair business environment,it is difficult to respond to the compatibility confusion between the administrative principle according to the law and the administrative agreement,and it is easy to lead to "different judgments in the same case".The unified administrative agreement system will help provide the basis for administration and judgment according to law,enhance the scope and efficiency of protection of the rights and interests of social subjects,and improve the basic legal support for national governance.In addition,it is necessary to debug the unified goal of the system according to the functional characteristics of the administrative agreement.The goal of the unified system in an all-round and no-omission manner should be appropriately relaxed,and the procedures,rights and obligations,and implementation standards related to public interests should be basically unified.The second chapter is "the main reason for the lack of unity of administrative agreement".Theoretical misunderstandings,cognitive limitations and objective system and mechanism obstacles to the administrative agreement are the main reasons that hinder the unification of the administrative agreement system.In terms of theoretical misunderstandings,the existing theories are used to divide administrative acts and civil acts from a strict perspective of traditional public and private law,and overemphasize differences while ignoring commonalities.The functional filling of "finding and filling omissions" neglects to have a real dialogue with the civil law academia.In terms of cognitive limitations,because the single logical chain of "administrative behavior theorylegality review" has always been too much pursued,in the process of system construction,it still relies heavily on "administrative behavior" as the logical starting point for formation.In addition,judicial review under the administration of the theory of administrative behavior unilaterally emphasizes the behavior of one side of the administrative organ.This kind of upstream thinking of restoring and restraining administrative agreements with judicial relief cannot restrain the endless administrative agreement disputes from the root cause.At the level of institutional obstacles,in the context of China’s national system,the power of the administrative organs is too large,and the local power organs prefer to unilaterally empower the administrative organs.The administrative agreement has distinct regional characteristics,and the local enthusiasm is prominent.Institutional construction creates obstacles.The third chapter is "Unification of Administrative Agreement System under the Concept of ’Public-Private Dual Adjustment’".This chapter intends to build a theoretical framework that controls the full text as a basic guide for the subsequent chapters.To realize the unification of the legal system of administrative agreement,the basic position is to follow the path of "unification and differentiation" : "unification" is to explore and break through the research barriers of administrative agreement in the sense of public law,and "speciality" is to respect the special law of administrative agreement.The analysis tool of "administrative process theory" is introduced,and the administrative agreement is placed on the horizontal time axis,and the dynamic observation path can be subdivided into different links before the conclusion of the contract,signing and performance.In the system construction of administrative agreements,the guiding ideology of the standard of administrative law is not eternally true,and the single "civil law model","two-level model","applicable model" and "uniform law model" are all in the regulation of administrative agreements.insufficient.Therefore,at present,it is necessary to break through the central theory of administrative law and turn to the perspective of decentralization and synergy that "emphasizes both administrative law and civil law".The content of synergy includes both macro and micro aspects.The former refers to the equal emphasis on contract elements and power elements in administrative agreements,while the latter refers to the balance of rights and obligations within the legal relationship of administrative agreements.According to the analysis logic of the right of claim,the public law claim right and the civil claim right in the administrative agreement have logical commonalities,and the two-way structure of the claim right system should be reconstructed in combination with the civil law,including the contract claim right,the performance claim right,and the unjust enrichment and unjust enrichment.Due to management request rights,etc.Under the concept of public-private dual coordinated adjustment,the unified legal system of administrative agreements should follow the basic guiding principles of good faith,freedom and equality of contracts,limited preferential rights,and administration according to law,and be concretized in combination with the special attributes of administrative agreements.The fourth chapter is "Unified Legislation of Administrative Agreement System".Worldwide,the legislative examples of administrative agreements can be summarized as the German "unified model" legislation that has been systematized with the Federal Administrative Procedure Law,the French "dual-track model" legislation,and the common law countries such as the United Kingdom and the United States.example.The administrative agreement system proposed by our country is unified and adopts the public law model,including the formulation of the "Administrative Procedure Law","Administrative Agreement Law" or "Administrative Contract Regulations".The combination of legal norms is prone to regulatory omissions.The unified system of administrative agreement should be based on the combination of public and private law,and a plan to formulate a "legislative interpretation of administrative agreement" is proposed.Legislative interpretation can serve as a "bridge" to communicate public and private laws,take both civil law and administrative law as the object of interpretation,extract commonalities and resolve differences,and finally form pre-rules for administrative agreements that integrate public and private duality.In terms of function and purpose,legislative interpretation combines the creation ideas in legislative theory and the integration ideas in interpretation theory.While saving legislative time and responding to practical problems,“hybrid administration” can be properly embedded in the field of integration of public and private law."Legislative interpretation of administrative agreements" should follow the functional logic of public and private law synergy,the interpretation logic based on the process of administrative agreement,and the content logic of "rights and powers" in parallel,focusing on "legislative goals","basic principles" and "basic content" Build a system framework with "implementation assurance".The fifth chapter is "the key point of ’legislative interpretation of administrative agreement’".This chapter intends to put forward corresponding statutory suggestions for some key issues that need to be clarified in the "Legislative Interpretation of Administrative Agreements".First,it is necessary to unify the nature judgment and normative semantics of administrative agreements,and make it clear that administrative agreements are administrative acts that include civil factors;second,unify the validity status of administrative agreements.There are stipulations that basic rules such as invalidity,revocation and pending effect should be reorganized;thirdly,the behavioral norms of all subjects in the implementation of administrative agreements should be unified.The government and the public and the counterparty in the agreement are connected based on the guarantee theory and the rights and obligations generated by the transfer of functions respectively,and the counterparty in the agreement also has the obligation to provide public services to the public.Accordingly,a liability system for negligence in the conclusion of administrative agreements shall be uniformly established,and the obligations of administrative organs to ensure the legality of the content of promises,ensure fair competition,review qualifications,and disclose information are clearly defined.It should also follow the two main lines of "agreement performance under normal operating conditions" and "agreement performance under implicit power relations" to unify the performance supervision of administrative agreements and the control of preferential rights and other behavioral rules to increase the counterparty’s equal rights..The sixth chapter is "the unified implementation of the administrative agreement system".In terms of administrative operation,administrative interpretations of administrative agreements should be formulated to implement a unified supervision mechanism for administrative agreements,establish a mechanism for the integrity of the chief executive for government procurement of public services,improve the accountability mechanism for counterparty performance,and a discretionary benchmark system for the exercise of administrative privileges,etc.Institutional mechanisms.Establish a unified classification,unified region and unified configuration of the administrative agreement case guidance system.In terms of judicial review,the existing Judicial Interpretation of Administrative Agreements and the guidance system for administrative agreements should be further adjusted and improved.In the judicial interpretation,in order to coordinate with the unified legislative interpretation of the administrative agreement system,it is necessary to establish a "two-way" litigation structure that allows the administrative organ to prosecute the judicial organ,and to treat the "illegal dereliction of duty by the government’s neglect of supervision over the performance of the agreement".,"abuse of power and collusion to modify and lower the service quantity and quality standards in the agreement" and "the act of failing to undertake public tasks according to law or failing to apply for enforcement by the people’s court" are included in the scope of administrative public interest litigation,which can better play the role of administrative The maintenance function of litigation to the objective legal order.In addition,it is necessary to refine the three-level dimension and density benchmark system of judicial review of administrative agreements.To improve and guarantee a unified judicial case guidance system,it is necessary to establish a coordination mechanism for administrative agreement case guidance work,expand the coverage area of administrative agreement judicial case guidance,and make full use of scientific and technological support to promote the construction of the case guidance system. |
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