Research On The Administrative Privilege And Its Regulation In The Administrative Agreement

As an effective means of cooperation between the government and the public,administrative agreements not only enhance the cooperation between the government and social capital,but also improve the efficiency of administrative management.In recent years,they have been increasingly widely used in China.On the premise of both administrative and contractual nature,administrative nature should be regarded as the fundamental attribute of administrative agreements.The administrative priority enjoyed by one party of the administrative subject during the signing and performance of the agreement is also a power in nature.The correct exercise of this power is not only related to the smooth achievement of the administrative objectives of the agreement,but also related to the protection of the rights of the administrative counterpart,Analyzing and studying the administrative priority rights in administrative agreements to achieve the best balance between public and personal interests is of great significance for the development of the administrative legal system.Although administrative agreements have been applied in many fields in practice,the theoretical research on administrative preferential rights in China is still in its infancy,and the number of relevant legal provisions is scarce,which cannot meet practical needs,leading to the abuse of administrative preferential rights by administrative organs,and the inability to protect the rights and interests of the opposite party.The judgment of the nature of administrative priority rights should start with the judgment of the nature of administrative agreements.As an act with both administrative and contractual nature,administrative agreements are based on the existence of public power factors,regardless of the changes in their definition criteria.Administrative nature is the fundamental attribute of administrative agreements.The nature of administrative agreements determines that the essential attribute of administrative priority rights is neither equal rights nor privileges among civil subjects,but rather a power that needs to be strictly controlled.Analyzing the existence basis of the system of administrative preferential rights from the perspective of theoretical law is conducive to a correct interpretation of administrative preferential rights.The legitimacy of the system of administrative preferential rights first comes from its purpose of safeguarding public interests,and all actions to exercise administrative preferential rights must take public interests as the starting point;The legitimacy of the system of administrative priority rights lies in the functional rationality of ensuring that public and private interests ultimately reach a balance.If the administrative subject exercises priority rights and damages the interests of the opposite party,compensation should be provided.The common types of administrative preferential rights include supervision power,enforcement power,sanction power,and unilateral change and cancellation power.Through searching and studying judicial adjudication cases in practice,it can be found that there are problems in the actual operation of the administrative preferential rights system in China’s administrative agreements,including confusion between administrative preferential rights and contractual civil rights by administrative subjects The exercise of administrative preferential rights is not standardized(arbitrary exercise of power without explanation of public interests,improper degree of exercise of administrative preferential rights,illegal exercise of preferential rights procedures,etc.),and inadequate protection and relief of the rights and interests of the opposite party;The main reason for the existence of the above problems is that the legal provisions in the field of administrative agreements in China are not yet perfect,especially the lack of clear provisions on the conditions for the exercise of administrative preferential rights,as well as the lack of provisions on the procedures that administrative organs should follow when exercising administrative preferential rights.In addition,there is the problem of too single avenues of relief.The system of administrative priority rights originated from outside the country.The relatively perfect administrative agreement system and administrative priority rights system developed in France,Germany,and British and American countries are worthy of our reference.Through an understanding of extraterritorial administrative legal systems,this paper summarizes the implications for optimizing China’s administrative preferential rights system,including improving substantive and procedural legislation,broadening the remedies available to the counterpart.The last part of the article puts forward suggestions on how to optimize the administrative priority system in China’s administrative agreements.In view of the problems that arise in practice and in connection with advanced experience abroad,it is first proposed to clearly legislate the administrative priority system,limit the starting conditions for the administrative priority,and define the key concept of public interest;Secondly,we should control the exercise of administrative priority rights in terms of procedures,regard notification procedures as the basic requirements for administrative subjects to exercise priority rights,and introduce hearing procedures into the field of administrative agreements;Thirdly,building a system of reference and application rules for civil law norms is crucial to resolving issues in the field of administrative priority rights.Finally,it is necessary to improve the administrative agreement dispute resolution mechanism,optimize the existing litigation relief channels on the one hand,and use administrative mediation to resolve administrative agreement disputes on the other hand,and provide feasible ideas for the latest revision of administrative reconsideration legislation on the review of administrative agreements,including suggestions on which review mode to choose,the priority of legality review and contractual review,and the theoretical basis.