On The Application Of The Principle Of Change Of Circumstances In The Termination Of Administrative Agreements

As a kind of "flexible" administrative management mode,administrative agreement has been applied more and more widely in modern public administration.Administrative agreement has two major properties of "administrative" and "agreement",aiming to realize the public benefit purpose through the form of signing agreement text with administrative counterparts.However,its "agreement" also makes administrative agreement fall into the entanglement between the exercise of public power and autonomy of will,especially when the administrative agreement is stuck in the performance dilemma and cannot be continued to perform.Although the right of administrative advantage can be forced to terminate the agreement to ensure the realization of public welfare or not to lose,it also causes the neglect of "agreement" and autonomy of will,which is behind the lack of respect for the interests of the administrative counterpart as the other party to the agreement.At the same time,for administrative organs,it seems that only relying on administrative advantage rights can not cover all the reasons for rescission of administrative agreements,and it is urgent to adopt a new system of rescission of agreement to meet the needs of rescission of agreement.The "protocoliness" of administrative agreements makes the connection point between the principle of change of circumstances and the rescission of administrative agreements in the sense of civil law,so it is necessary to refer to the principle of change of circumstances in civil law.Apply it to the process of rescission of administrative agreements.The current system of unilateral termination of administrative agreement mainly consists of unilateral termination based on administrative advantage right.The principle of change of circumstances is in a marginal position both in legislation and in judicial application.In order to reverse this dilemma,the bottleneck of introduction and application must be broken.Firstly,we should investigate the legitimacy basis of the application of the principle of change of circumstances when the administrative agreement is terminated,which is mainly carried out from the desirable attribute of the administrative agreement.Secondly,in order to better adapt to the application status of the administrative agreement and the system of agreement termination,and coordinate the relationship between the principle of change of circumstances and the administrative advantage,we should establish the principle of "administrative" under the "agreement".To realize the contractual right of administrative advantage,and to realize the public interest on the basis of respecting the text of administrative agreement;Finally,for the specific application of the principle of change of circumstances to carry on the legislative perfection,in the relevant legal texts to clarify the application of the principle of change of circumstances,unified application rules;According to the principle of change of circumstances,set up procedures for the administrative organ to terminate the agreement,including the establishment of the first consultation obligation and public welfare security system;According to the principle of change of circumstances,the author changes the litigation structure and puts forward the idea of entrusting the plaintiff qualification to the administrative organ in the administrative agreement litigation.