On The Determination Of The Invalid Administrative Agreement

In the past few years,administrative agreements have been a hot topic of academic disputes.In judicial practice,a large number of administrative agreement cases have also appeared in the academic fields.The negotiation and signing of administrative agreements have broken the administrative mode of administrative organs in orders and other administrative forms.Administrative agreements have the characteristics of consistency and flexibility,and they can realize the maximum utilization of public resources better than the traditional unilateral and highly coercive administrative methods in some aspects.However,the current law does not have its own independent application standards for the invalidity of administrative agreements,mainly invoking administrative legal norms and civil legal norms.Due to the lack of unified legal provisions for the invalidation of administrative agreements,the standard of invalid identification in judicial practice is not unified,which has also become one of the most difficult problems to deal with administrative agreement cases in the future.The term administrative agreement originated in France,and later many countries took this as a reference,and the theory and practice were further integrated and developed.Therefore,its development in foreign countries is more comprehensive,all aspects of the research is also more sufficient.In recent years,there have been a lot of relevant studies in China,and the effectiveness rules of administrative agreements are also a problem worth discussing in the legal field.Theoretically,the administrative agreement has dual attributes ——administrative and contractual.According to the law,there are double standards for the invalidity of administrative agreements.The way of thinking will affect their way to handle cases.It is also because the administrative agreement contains these two attributes,and the content of the agreement interweave between legality and contract,resulting in the unclear ownership of cases in the judiciary,and the court is also confused.The first reason is that the concept of the administrative agreement in the Administrative Procedure Law of the People’s Republic of China and its judicial interpretation is too vague and broad.We cannot accurately grasp the administrative agreement according to the concept in the legal interpretation.Secondly,there are both administrative law standards and civil law standards at the same time.There is no definite application order between multiple standards.In practice,the application of double standards is chaotic.Finally,the Administrative Procedure Law and the Civil Law belong to different legal departments,and there are overlapping between the invalid reasons of the administrative agreement,and there are a lot of unclear application.The law does not pay attention to the procedural issues of the agreement,and it is not clear whether the procedural violation can be invalid.The invalidation of administrative agreement involves the two departmental laws of bank and people,which produces a variety of problems between the overlapping of departmental laws.In view of the problems existing in the invalidity of administrative agreements in China,this paper mainly analyzes the existing judicial cases,and combines with the academic views,and puts the corresponding solutions.First,it is to clarify the concept of administrative agreement in the context of the rule of law in China,and to establish the judgment standard of administrative agreement mainly from the aspects of subject,purpose and content.If the administrative agreement does not meet the above standards,can the invalidity of the administrative agreement be deduced reverse.Secondly,it is to establish and improve the unified review rules of invalid administrative agreements,which shows the superiority of establishing and perfect the unified review rules from three aspects: the necessity,foundation and realization path of unification.Finally,the theoretical content of the administrative agreement should be enriched,and the specific invalid reasons should be clarified.In form,a relatively detailed enumeration mode can be adopted,including adding the invalidation of "violation of legal procedures",to make up for the lack of legal procedures when determining that the administrative agreement is invalid.