Research On The Administrative Prior Rights In The Administrative Agreement

With the rise of the idea of the welfare state,the administrative management mechanism of the Chinese government is also undergoing constant changes,from the original mandatory administration to the guiding and cooperative administration,and the administrative agreement system developed from the latter.With its unique characteristics such as non-coercive,participatory and cooperation,guiding and cooperative administration has gradually become an important way for Chinese government to conduct administrative management.Although the administrative agreement is premised on equal negotiation and mutual benefit,it endows the administrative agency with administrative prior rights because it carries the public interest.This priority itself is still a mandatory administrative power.In practice,the existence of administrative prior rights has brought many problems to the implementation of administrative agreements,and the correct exercise of administrative prior rights leads to the satisfactory achievement of the objectives of the administrative agreement and affects the effective guarantee of the legitimate interests of the people.Only with the correct understanding and good use of this priority can agencies give full play to the priority of administrative agreement and contribute to the goal of building a government under the rule of law.Although the administrative agreement has been widely used in practice,the construction of the administrative agreement system is still not mature enough,and the definition of administrative prior rights and public interest is almost blank,which has caused many problems in the use of power.The demands of practice force us to face the flaws of theory,deficiency of legislation and systems.This paper analyzes the nature and necessity of administrative prior rights,takes the problems exposed in judicial practice as the starting point,summarizes the causes of current problems,and proposes the feasible ideas for regulating administrative prior rights.First of all,I clarify the related concepts of administrative prior rights and standardizes the basic concepts of administrative agreements through the analysis of the boundaries of administrative agreements.The analysis of the manifestation and legal nature of the administrative prior rights points out that the unilateral change and termination rights in the administrative prior rights is targeted by this article.It also points out the necessity of the existence of the administrative prior rights,which shows that the administrative prior rights are indispensably important in administrative agreement and lay the foundation for subsequent research.Secondly,I explore the problems existing in our country’s administrative prior rights by studying some cases in judicial practice,and summarize in the following three aspects : abuse of administrative prior rights,the illegal exercise of the procedure and the ignored private party’s rights.The inconsistent understanding of administrative priority by the judiciary also leads to the phenomenon of "different judgments for similar cases",which undoubtedly brings harm to the stability of the law.Thirdly,I explain in the reasons for the above phenomenon.First,administrative agreement itself has the characteristic,the long execution cycle,which needs the cooperation of multiple agencies to implement,and high power administration idea governs administrative action.Second,it lacks legal text,which specifically manifests as scattered substantive laws and lack of systematic regulations,the vague definition of public interest and lack of restrictions on the exercise conditions,the lack of procedural regulations on the exercise and difficulties to enter the level of operability.The remedy way is not complete,lack of non-lawsuit remedy way.Finally,I put forward feasible suggestions on how to regulate administrative prior rights.From my perspective,that can be started from the following four aspects:First,the starting conditions,should meet the legitimacy requirements.That is,administrative agencies should bear the responsibilities of proof,and public interests should be defined clearly and completely from both legislative and judicial aspects.Second,the way of exercise,agencies should construct due process and follow the principle of proportionality,that is,agencies need to establish explanation and notice and hearing system.The ideal way ensures that parties with different opinions can fully express their opinions to each other and ensure the prudent exercise of power.Third,in the resolution of dispute,agencies should establish a multiple non-litigation resolution mechanism,I believe that administrative agreement with mediation and reconsideration can be established,and further improve the litigation settlement mechanism.Fourth,in taking consequence,agencies should make reasonable compensation to private party,that is,to make up for the loss caused by administrative priority.