Research On The Legal Regulation Of The Unilateral Right Of Alteration And Cancellation In Administrative Agreement

As a more flexible administrative management method,administrative agreement is favored by administrative organs,and is also widely used in administrative activities,giving play to its advantages in improving the level of administrative governance and realizing the goal of administrative governance.However,the dual attributes of administration and contract also determine the peculiarity of administrative agreement,It is not only different from the simple administrative act,but also can not be completely equated with the civil contract.As the product of the fusion of public and private law,the administrative nature endows the administrative organs with the "privilege" under special circumstances,also known as the administrative priority right,one of the typical representatives is the unilateral right of alteration and cancellation.Although the exercise of the privilege can protect the public interest to a certain extent,it affects the consensus of the administrative agreement and damages the interests of the counterpart of the agreement.Therefore,the exercise of the privilege should be clearly limited.From the current regulatory situation,China ’s legal provisions for administrative organs to exercise the unilateral right of alteration and cancellation are less and scattered,and they are not systematic.With regard to the exercise of the unilateral right of alteration and cancellation,“The Supreme People ’ s Court ’ s Provisions on Several Issues Concerning the Trial of Administrative Agreement Cases” only made the limitation under the circumstances of "serious damage to the national interest and social public interest",and did not specify the conditions,procedures or consequences of exercise.In practice,there are still some problems in the process of administrative organs exercising the unilateral right of alteration and cancellation,such as improperly expanding the public interest and abusing the right of administrative priority,confusing the right of administrative priority with the right of rescission of civil contract change,ignoring the principle of due process and not fully protecting the rights and interests of the counterpart of the agreement.Therefore,in order to prevent the improper exercise of this power from reducing the credibility of the government and intensifying social contradictions,it is necessary to standardize the identification of public interests by administrative organs,clarify the application of the right to terminate the change of civil contracts,improve procedural regulations and improve the protection of the counterpart of the agreement.Only by strengthening the regulation on the exercise of unilateral right to change and rescind the administrative organs,can the legitimate rights and interests of the counterpart of the agreement be better protected and the credibility of the government be maintained.