Research On The Identification Standard Of Invalid Administrative Agreement

Administrative agreement is one of the ways that administrative organs perform their administrative duties.With the development of public administration and the transformation of government functions,the relationship between government and citizens is no longer limited to the relationship between management and being managed,but a new administrative relationship of service and cooperation has emerged.As the government more and more USES the way of agreement for administrative management,administrative agreement cases are increasing,and the premise to resolve the dispute of administrative agreement is to judge the effectiveness of the administrative agreement,and the invalidity of the administrative agreement is the basis of the effectiveness of the entire administrative agreement.Because the administrative agreement has the nature of administration and agreement,the invalidation of the administrative agreement not only needs to be regulated by the administrative law,but also by the civil law.At present,China’s legislation is relatively vague,the application path of public and private law is not clear,and the standard of invalidation of administrative agreement is not unified,resulting in the confusion of law application in judicial practice.The existing research on the invalidity of administrative agreement only provides a whole idea of invalidation,but does not list the specific criterion of invalidation of administrative agreement.Therefore,this paper intends to use the empirical method,according to the provisions of the supreme people’s court on several issues concerning the trial of administrative agreement cases implemented in 2020,to study the criteria for the determination of invalid administrative agreement,in order to enrich the theoretical research on administrative agreement and provide reference for judicial practice.Based on the theoretical study of invalid administrative agreement,this paper analyzes the specific practice of the standard of invalidation of administrative agreement,finds out the malpractice of the standard of invalidation of administrative agreement,investigates the system of invalidation of administrative agreement outside China,and puts forward some Suggestions to improve the standard.This research is divided into four parts,the first part of the introduction from the background of the topic,the significance of the topic,domestic and foreign research status,research methods,innovation and shortcomings.The second part analyzes the theory of invalid administrative agreement.Firstly,this paper expounds the concept and characteristics of administrative agreement,and introduces the concept of invalid administrative agreement.Then,the relationship between invalid administrative act and invalid administrative agreement and invalid civil contract is explained respectively.The third part studies the status quo and existing problems of the identification standards of invalid administrative agreements in China.The present situation is analyzed from two aspects: legal provisions and judicial practice.Firstly,by sorting out the historical development of administrative agreement laws in China,this paper finds out the applicable norms for the recognition of invalid administrative agreement in currentlaws and judicial interpretations,and analyzes the invalid situations in the norms to pave the way for raising problems.Then,through empirical analysis,it is found that in judicial practice,administrative legal norms and civil legal norms are applicable at the same time,significant and obvious illegal laws and social public interests are applicable at the same time,and local regulations become the basis for determining invalid.By law and the judicial practice of the status quo,found that the problem of administrative agreement invalid standards in our country,the administrative law and civil law applicable ideas are not clear,"major illegal" regulation is not clear,the social and public interests standard is not clear,unreasonable legal norms applicable level limit,in violation of the provisions of legal application situation.The fourth part investigates the system of determining invalid administrative agreement in foreign countries.From Britain and the United States to Germany and France in the continental law system,it finds that the model of quasi-civil law in administrative law represented by Germany is more in line with the current legal provisions on determining invalid administrative agreement in China,which is of reference significance.The fifth part is the conception of perfecting the identification standard of invalid administrative agreement in our country.First of all,we should draw lessons from the guiding ideology of Germany in determining the invalid administrative agreement,establish the path of determining the invalid administrative law in priority,and integrate some invalid standards appropriately.Then,under the guidance of the guiding ideology,integrated the "significant and obvious illegal" as the basic standard of criterion of invalid administrative protocols namely the implementation main body does not have subject qualification or without permission,the administrative agreement could not be in accordance with,a serious violation of legal procedure,auctioneers damage state,the collective and the interests of others,in the form of legal cover for illegal purposes.