Research On The Judicial Review Of Administrative Agreement

Administrative agreement is the most important practice form of governance by contract,To achieve administrative purposes through administrative agreement,has already become a legal action,which administrative subject in the modern society has to use.As a combination of administrative and desirable nature,administrative agreement is really difficult to enter into the legal order of our country,which is divided into public law and private law.The new modified Administrative procedure law in November,2014 take the administrative agreement into the category of judicial review.Until now,administrative agreement become one part of administrative proceeding formally.However,when a new system begins,specification is yet to be perfected.This study uses the methods of literature,investigation,comparison,Historic analysis and multi-disciplinary comparison.Based on legal basis for judicial review of administrative agreement,characteristics of administrative,analyzation of legislation and emprical issue,and comparation of foreign legislative experience,provide power to solving theories and technical problems of administrative agreement judicial system.The study begins with relevant basic concepts,discriminates the concepts of administrative agreement,administrative contract and administrative deed,indicates the connotation of administrative agreement in the new modified Administrative procedure law,redefine it.Next,put forward countermeasures for problems of administrative agreement judicial system in our country,such as fuzzy standard of identify,difficult accept of case,narrow scope of the plaintiff and the defendant is constant the defendant,variant standard of burden of proof,and not unified adjudication method.And establish a system.Corresponding to the legal principle of real right in civil and statutory principle of crime in criminal law,put forward a legalization vision of administrative agreement,provide basis of administrative agreement judgment standard in judicial review.In the determination of plaintiff qualification standard part,present explicitly that the plaintiff qualification should be given to administrative authority,point out that the administrative prior rights can'tbecome the reason against plaintiff qualification of administration.Giving plaintiff qualification to administration will not make inroads on legal interest of administrative counterpart or the theory of “layman suing officials”,in that administrative litigation is not only the litigation of layman suing officials,but also the litigation to solve administrative disputes,maintain public interests.Basis on the properties of administrative agreement,such as mixed,bidirectional and interactive,regard administrative act as the standard to determine object of judicial review.The object of administrative agreement judicial review includes,administrative agreement itself,the administrative prior rights act of administration,sign,fulfill,change and termination of administrative agreement.Confirm the distribution of evidential burden,with the principle of “who advocate who proof”.There exists an exception that administration has the burden when administration does administrative prior rights act.In the end,complete mediation and judgment of administrative agreement case.