The Dilemma And Outlet Of Judicial Settlement Of Dispute Over Breach Of Contract By The Relative Party Of Administrative Agreement

With the continuous promotion of the construction of the rule of law government,the functions of China’s government are being transformed from "management-oriented" to "service-oriented",and the government’s enforcement methods are also becoming softer and more flexible with the transformation of its functions.As a result,the administrative agreement system is widely used in modern social management as a new flexible management tool.However,compared with the widespread use of this system,China has not yet established a matching judicial remedy system,so that all administrative agreement disputes can be effectively resolved.The current law provides that the counterpart of an administrative agreement has the right to file an administrative lawsuit in the people’s court when the administrative organ violates the agreement,but the law does not also give the administrative organ the right to sue the counterpart of a breach of contract agreement,which makes the administrative organ controversial in the choice of remedy.From the past judicial practice,the administrative organs take the relief path mainly through civil litigation,administrative litigation and non-litigation enforcement,and the thesis analyzes these three relief paths by way of case introduction.The civil litigation remedy is discarded because of the inability to review the administrative provisions of the administrative agreement;the administrative litigation remedy can substantially solve the dispute of the breach of contract by the counterparty,but it is contrary to the existing one-way administrative litigation structure in China;and the non-litigation enforcement remedy is affirmed by the existing law,but there are also problems such as unclear basis for enforcement,reduced administrative efficiency,imperfect review and standards,etc.The paper concludes by proposing the following Based on this,the thesis finally proposes the system optimization of the non-litigation enforcement remedy by clarifying the basis of enforcement,improving the review procedure,clarifying the review standard and transforming the review mode.In addition,in order to better solve the dispute of default,the thesis tries to build a reverse administrative litigation system for administrative organs by drawing on foreign experience and combining with China’s national conditions,and envisages the specific design of the system in terms of the plaintiff’s qualification,the right to sue for administrative organs,the burden of proof and litigation fees.This paper attempts to optimize the existing system and build a new system to maximize the balance between public and private interests,to achieve the purpose of the administrative agreement,and to make China’s administrative agreement system as soon as possible on the road to healthy development.