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Research On The Regulation Of The Power Of Unilateral Change And Cancellation Of Administrative Organs In Administrative Agreements

Posted on:2022-11-30Degree:MasterType:Thesis
Country:ChinaCandidate:H SunFull Text:PDF
GTID:2506306761965809Subject:Science of Talent and Labor Science
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Administrative agreements are both administrative and agreeable,narrowing the status gap between administrative organs and administrative counterparts,and no longer making administrative power appear superior.However,due to the need for administrative organs to protect the public interest and the realization of the purpose of administrative agreements in the process of performing administrative agreements,and are limited by the existing administrative litigation structure in China,administrative organs do not have the right to sue,so it is necessary to give administrative organs partial rights and interests that are superior to the counterparts of administrative agreements,that is,administrative advantages.This includes the rights and interests of administrative organs that can unilaterally change and terminate administrative agreements,but due to insufficient theoretical research and lack of legislative norms,in practice,there have been cases in which administrative organs improperly exercise the power of unilateral change and rescission,which will not only cause a decrease in the credibility of administrative organs,but also cause confusion in judicial adjudication.In order to ensure the interests of the counterparty of the administrative agreement and the realization of the purpose of the administrative agreement,and to give full play to the function of the administrative agreement,it is necessary to regulate the unilateral modification and termination rights of the administrative organs in the administrative agreement.By defining the concept and characteristics of the unilateral right of change or rescission of administrative organs,it is believed that before the administrative agreement is concluded and has not been fully performed,the administrative organ,as a party with public power,in order to safeguard the national and social public interests or the realization of administrative management purposes,unilaterally makes a decision to modify or terminate the administrative agreement in accordance with legal procedures and notifies the counterparty of the agreement.It has three major characteristics: administrative and contractual coexistence,statutory and exclusive.According to the different power bases,it is divided into unilateral modification and rescission rights based on administrative advantage rights and modification and rescission rights based on civil legal norms.The existing legislation has a low level of legal provisions on unilateral modification and rescission of the right of unilateral change and rescission,and the norms are not yet comprehensive:the subject of unilateral change and the exercise of the right of rescission is not clear,the application of legal basis is confused,the procedural legal provisions are missing,and the supervision mechanism is not perfect;in judicial practice,it can be spied that there is improper exercise of this power by the administrative organs,including unrestricted abuse and neglect in exercising it.In view of these problems,further analysis and starting from the basic theory,we will try to put forward some feasible regulatory suggestions: first clarify the main body of power exercise;second,distinguish the unilateral modification of the right to rescission from the perspective of administrative advantage rights and based on civil legal norms,and clarify the application of legal basis;and again,according to the principle of due process and other administrative legal norms,improve the administrative organs to change and terminate administrative agreements,need to perform consultation first,inform and explain the reasons,and listen to statements and defenses.Hearings,compliance with the limitation system and several procedures.Finally,it is proposed that the exercise of the right of change and dismissal by administrative organs needs to be supervised by both internal and external administrative organs,and in terms of internal supervision,it is possible to build an administrative agreement modification and dismissal review system and strengthen accountability by drawing on the legal review system for major law enforcement decisions;in terms of external supervision,implement the administrative agreement publicity system to enhance public participation.
Keywords/Search Tags:Administrative agreement, Unilateral change and cancellation right, Regulation path
PDF Full Text Request
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