Research On Judicial Review Of The Right To Unilaterally Change And Terminate Administrative Agreement

Administrative mechanisms are progressively used in all areas of government and play an important role in public administration,and accordingly,the increase in their use has led to conflicts between administrative organs and administrative counterparts arising from administrative agreements being gradually highlighted.In response to the issue of administrative agreements,we have introduced corresponding legal norms in 2015 and 2019 to address the problems that arise in reality.However,conflicts arising from the unilateral variation of the right of release by administrative agreements in China remain high,and such conflicts are reflected in judicial review.Judicial review also needs to be improved accordingly in order to keep up with the development of practice.The administrative agreement has both consensual and administrative properties,on the basis of consensual administrative organs and administrative counterparties are equal,but administrative background administrative organs are the party enjoying the advantage,the exercise of the power breaks the principle of contractual relativity,in the judicial review has a certain controversy.For the judicial review of this power,this paper firstly clarifies the nature of the unilateral change and release of administrative agreement,which is a power rather than a right.Secondly,the judicial review of the right to unilateral variation and release of administrative agreements is based on the elements of the judicial review,In other words,it is a consideration of four aspects: identification of the administrative contract,identification of the conditions of enforcement,trial of the enforcement procedure and responsibility for the results of the enforcement.In contrast to the case law reflected in the Convention,the criteria for detection vary,the identification of conditions of use is chaotic,procedural review is not rigorous and the path to outcome review is not clear.Firstly,the identification of administrative agreements should be based on comprehensive criteria,not just one element,and the connotation of public interest should be clarified.Secondly,it is proposed that the types of unilateral change and release should be reviewed separately,focusing on the review of administrative duties in agreements for administrative purposes and the review of public interest in agreements for public services;according to the different attributes of power,they should be divided into administrative According to the different attributes of the power,it is divided into administrative power of superiority,change of circumstances and unilateral change and release of power of self-examination and self-correction,and the focus of the review of the exercise of the three different types of power is clarified.Thirdly,to strengthen the review of the exercise of procedures and to clarify the content of the review of procedures,i.e.the construction of the review of the procedures of notification,statement and defence,and hearing.Fourthly,to clarify the review of the consequences of the exercise of the lawfulness and illegality of the law,it is appropriate to adopt the standard of direct and indirect damages for the liability,while the liability for compensation should be determined by specifically distinguishing between the exercise of the power of administrative superiority and the exercise of the power of change of circumstances.