Study On The Legal Issues Of Exercising Preferential Rights To Terminate Administrative Agreement

Administrative agreement is a contract signed by the government with the counterparty in order to achieve administrative management and public service goals,and is one of the important means of building a service-oriented government in my country.Compared with the traditional administrative management methods,the administrative agreement system is more flexible and conforms to the development trend of the rule of law government,so it has been widely used.In order to ensure that the goals of administrative management and public services can be better achieved,the state grants administrative subjects administrative privileges beyond contractual rights,that is,administrative privileges.Administrative preferential rights are specific to the administrative agreement,including the right to choose the counterparty,the guidance to the implementation of the agreement,the right to supervise and so on.One of the most important manifestations is the unilateral right of the administrative organ to rescind the administrative agreement.When the continued performance of the administrative agreement may seriously damage national interests and public interests,the administrative agency may unilaterally terminate the administrative agreement.However,in reality,there are some administrative organs that abuse the preferential rights to rescind the administrative agreement at will.Such behavior will not only damage the legitimate rights and interests of the administrative counterpart,but also greatly reduce the image of the government in the public mind.This paper analyzes the unilateral rescission of the administrative agreement by the administrative subject exercising the preferential right,finds the existing problems,and puts forward corresponding improvement suggestions,in order to give full play to the advantages of this flexible administrative management,reduce contradictions,and better achieve administrative purposes.The article is mainly divided into the following parts to discuss:The first part firstly sorts out the types of unilateral rescission of an administrative agreement from two levels of theory and practice,and divides them into rescission based on civil legal norms and rescission based on administrative preferential rights.This paper selects the legal issues involved in rescinding administrative agreements based on preferential rights for key analysis,and proposes some existing problems in combination with relevant judicial judgment cases.Firstly,the substantive conditions for exercising the preferential right to cancel the administrative agreement are unclear;secondly,the administrative organs often fail to follow proper procedures when rescinding the administrative agreement;finally,the compensation and compensation standards for the counterparty are ambiguous after exercising the preferential right to cancel the administrative agreement.It is difficult to obtain real relief for the rights and interests of the counterparty.The second part analyzes the substantive conditions to be satisfied by exercising the preferential right to cancel the administrative agreement.Since it is difficult to define the scope of public interest accurately,it tries to explore the negative list mode in order to further clarify the connotation of public interest.At the same time,it is ensured that the act of exercising the preferential right to cancel the administrative agreement should be made by the competent administrative subject for the purpose of protecting the public interest,and should strictly follow the principle of protection of trust interests and the principle of proportionality,so as to prevent the administrative organ from abusing the preferential right to arbitrarily cancel the agreement.Administrative Agreement.The third part mainly solves the problem that there is no regulation in the procedure of exercising the preferential right to rescind the administrative agreement.The rescission of the administrative agreement is essentially an administrative act,so the corresponding administrative procedures must be followed.Under the circumstance that the legal provisions on administrative procedures in our country are not yet complete,this paper puts forward some suggestions on how to improve the procedures of administrative organs exercising preferential rights to rescind administrative agreements.In addition,the court should also take into account the legality review and contractual review in the process of hearing cases of administrative agreement rescission,strengthen the procedural review of administrative agreement cases,and protect the counterparty’s right to know and the right to defend from the judicial level.and other procedural rights.The fourth part discusses that after the administrative organ exercising the preferential right to terminate the administrative agreement in order to safeguard the public interest,it will inevitably cause damage to the personal rights and interests of the administrative counterpart.If they are not fully compensated and compensated,it is easy to cause new disputes and reduce the credibility of the government.In practice,it is necessary to continuously explore and broaden the relief channels,and clarify the scope and standard of compensation and compensation.Choose to apply the corresponding legal norms when the case is tried to balance the interests of both parties,in order to better resolve disputes and resolve conflicts,so that the administrative agreement system can give full play to its own functions.