| In December 2019,the Supreme People ’s Court issued the " Provisions of the Supreme People ’s Court on Several Issues Concerning the Trial of Administrative Agreement Cases "(referred to as " Administrative Agreement Provisions "),which clarified the right to rescind the administrative organ under the administrative priority right,affirmed the application of civil legal norms in the regulation of the right to rescind the administrative organ,and expanded the scope of the source of the right to rescind.However,the implementation of ’ administrative agreement provisions ’ has not completely solved the problems in the regulation of the right to rescind administrative organs.First of all,the specific standards for the administrative organs to terminate the administrative agreement are still not clear,and the conditions for exercise,procedural conditions and remedial standards are vague.In addition,the administrative organ may rescind the administrative agreement in accordance with the civil law,but there will be competition between the exercise of civil law and the exercise of administrative law.In this case,it is not clear which review path should be applied first.Based on this,in order to better regulate the rescission right of administrative organs,this paper starts with the relevant theories of the rescission right of administrative organs in administrative agreements.Firstly,it is clear that the rescission right of administrative organs in this paper includes the unilateral rescission right of administrative organs,the rescission right of administrative organs invoking civil law provisions and the rescission right of administrative organs exercising according to the agreement.In addition,the academic circles have three principles for the regulation of the right to terminate the administrative organ in the administrative agreement,namely the principle of legality,the principle of rationality and the principle of contract.When judging the legality or illegality of the power,it should be guided by the principles of legality,rationality and contract,and comprehensively apply the relevant provisions of administrative law and civil law.In the current situation of legislation,China ’s current legislation on the right to rescind the administrative organs is mainly a separate administrative law or regulations,and the provisions in the ’ administrative agreement ’ are also relatively macro.There are no clear provisions on the basis and procedures for the exercise of the right to rescind.The lack of legislation has led to the unclear conditions for the exercise of power,which has led to the problem that there is no clear standard of power regulation in judicial regulation,and the separation of the right of rescission from the civil law is not clear.In the absence of law at the present stage,in view of these two problems,this paper intends to establish the standard of rescinding administrative agreement according to administrative law and the standard of rescinding administrative agreement according to civil law,so as to better regulate the rescission right of administrative organs in administrative agreement. |
