On The Right Of Administrative Advantage And Its Limitation In Administrative Agreement

With the further promotion of establishing a service-oriented government,it has come into a common innovation of modern administrative management system that the administrative organ and the relative person sign an administrative agreement to achieve the administrative goal.On account of the administrative agreement is usually related the public interest,the administrative subject is endowed with the administrative preferential rights.However,after combing the provisions related to the priority right of administrative agreement in China’s administrative legal system,it has found that the relevant regulations have a low level of legal effect,and there is a lack of systematic provisions and unified legislative spirit as guidance.In addition,there stands several other problems,for instance,the absence of the specific content of the administrative preferential rights,the situation of exercising procedural provisions and the problem of a single afterwards relief remedy,which lead to the widespread problem that the administrative organs use the administrative preferential rights to infringe the legitimate interests of the counterpart of the agreement.This dissertation is using two typical cases of administrative agreement as the breakthrough point,combine with the case and the court judgment,leads to reflecting on the administrative agreement and its restrictions.Through refining monographs and scholars’ views,summarize the administrative agreement and the administrative preferential right,clarify the definition and types of administrative agreement,clarify the relevant concepts and forms of power expression of administrative preferential rights,clear up the theory of extraterritorial administrative preferential rights,and generalize the experience and enlightenment from extraterritorial administrative preferential rights.Combing the existing legal norms of administrative preferential rights in China,and combining with the judicial practice cases in China,try to seek out the problems,which is existing in the system of administrative preferential rights in our country’s administrative agreement.Explore the feasible measures to regulate the administrative preferential rights system in administrative agreement of China,and normalize the specific contents and procedures of the administrative preferential rights,widens the administrative internal relief channels,improves the judicial relief path,clarifies the legitimacy and rationality review standard,establishes the dual attribute burden of proof,and explores the administrative agreement preferential right system suitable for China’s practice.Looking forward to form the administrative agreement system,perfect the system of administrative preferential rights,facilitate the construction of a law-based service-oriented government,implement the function and effectiveness of the administrative agreement system,achieve the goal of protecting public interests,give consideration to limiting the abuse of administrative power,and realize the balance of interests.