A Study On The Application Of Law In Administrative Agreements

According to Zheng Yubo,a civil law scholar in Taiwan,the so-called legal application is "to apply abstract legal provisions to specific facts to judge their legal value" and to make an image of metaphor: The balance of gold,the balance of the law also,the specific facts of the gold,and the resulting weight,that is,the effect of the law.For the judiciary,the application of the law is undoubtedly one of the key links.China’s legal system uphold the dualism of public and private law tradition: the distinction between public law and private law is based on different norms of interest-private law to individual autonomy as the starting point,to solve the problem of personal conflicts of interest,Public law(especially administrative law)is the object of the state organs,in providing legal basis for it while limiting it;private law emphasizes the meaning of the parties;public law focuses on the implementation of the principles of administration,and thus in the interpretation and When applying the relevant laws and regulations,it must also identify its legal attributes in order to follow different principles and not to be missed.In addition,in the face of infinite social phenomena,the law can not be exhaustive norms,and thus in the treatment of non-clear norms of the event,we must first define the nature of the event,private law in order to accurately apply,quasi-use and analogy applicable provisions.In other words,the nature of the legal relationship determines the application of the differences in the choice of norms,and thus lead to completely different judgments of the results of the output.The first part of this article attempts to make a definition of administrative agreement.As the concept of administrative agreement is clear after the promulgation of the new law,before the Chinese academia has been in the use of the concept of administrative contract,so in practice the nature of the nature of the agreement,features and other aspects of great controversy.The author in this part from the concept,characteristics,nature point of view,the administrative agreement carried out a comprehensive inspection and definition,for the future to lay the foundation for the application of the law.The second part is the confusion and analysis of the legal application of judicial review.This part is the refinement of the problems encountered in the application of the judicial review law of our administrative agreement,namely,the ambiguity of the administrative agreement identification standard,the absence of legislation and the duality of public and private law.The author also from the practical point of view,with case data,academic theory for these issues to provide an analysis.The third part is the comparative perspective: the three kinds of administrative contract legal application model.The reason why the emphasis on comparative perspective,because the concept of administrative agreement is the origin and maturity of the outside,"he can not attack the rock," through the application of foreign law to observe the agreement,you can find,Germany and Taiwan The administrative law adopted by the administrative law is more suitable for the theoretical situation of the Chinese administrative agreement system,and it can meet the reasonable expectation of the administrative agreement system.The fourth part is the practical path of the judicial review of our administrative agreement.This is the key to this article.From the point of view of practice,combining with the conflict between the compound and the selectivity and the legal norms applicable to the judicial review of the current administrative agreement,it is necessary to follow the general law of administrative law,civil law and contract law when the law of judicial review of administrative agreement is applied Principle,at the same time,to the legitimacy of the main line of review,give priority to the application of administrative substantive law and procedural law,the effective application of the Administrative Procedure Law.At the same time with reference to the application of civil substantive law,appropriate use of civil procedural law for contractual and effectiveness of the review.The fifth part is the discussion of the dispute in the application of the judicial review of the administrative agreement.The legal application of the administrative agreement in the administrative agreement,the legal application of the liability for breach of contract in the administrative agreement,the legal application of the administrative counterpart to the non-performance of the administrative agreement,and the legal application of the administrative agreement,Contract Law "Article 52 of the applicable question.In the light of the different viewpoints of these problems and the particularity of the comprehensive administrative agreement system,the author has responded to these questions separately.