Research On Legal Regulation Of Unilateral Termination Of Administrative Agreements By Administrative Organs

Maine once said,"The law progresses from identity to contract." Contracts,also known as "contracts",seemed to be naturally bound up with private law in the early days,but they have always existed in the public law sphere as well.Executive power is a type of state power,a concept that first originated in the history of Western political thought in the theory of the distribution of power,proposed by Aristotle.But since its inception,administrative power has inevitably been associated with the coercive power of the state.With the dramatic change in the function of government from an "interventionist" to a "service-oriented" one,administrative agreements,as a kind of "administrative" and "contractual The dual identity of "administrative" and"contractual" is highly respected in today’s development process.However,in the course of the development of administrative agreements,the administrative authorities have derived the right of unilateral rescission in order to protect the public interest or the national interest.Although this privilege can achieve the protection of public interests,it undermines the consensual nature of administrative agreements and causes damage to the rights and interests of the counter-parties to the administrative agreements.2015 Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Administrative Procedure Law of the People’s Republic of China(hereinafter referred to as the Applicable Interpretation),for the first time in law,indicates the conditions for the exercise of unilateral release of administrative agreements,namely "public interest requires with other statutory appropriate reasons".The release of an administrative agreement by the administrative authority is in general divided into two types,one is the release by negotiation with the administrative counterpart and the second is the release by the administrative authority unilaterally.In the second case,the exercise of the right of unilateral release by the administrative body is distinguished into unilateral release under agreed conditions and unilateral release under statutory conditions.The unilateral release under statutory conditions includes the unilateral release under the definition of the Contract Law and the unilateral release under the concept of administrative superiority.The unilateral releases exercised by the administrative authorities discussed in this article are all unilateral releases under this concept.Nowadays,both in legislation and in theory,there are relevant provisions and studies on the regulation of power.From the current theoretical research,the administrative organ unilaterally release administrative agreement a power from the provisions of the law,rather than from the contractual agreement between the two parties,and it is exclusively belong to the administrative organ,will not be with the specific situation and will be attributed to the private subject of the party who signed the agreement.It is therefore different from the right to rescind in contract law.In addition,the unilateral right of release enjoyed by the administrative authorities is basically regarded as an administrative right of preference in today’s research.Therefore,this paper will analyse the current actual situation,find out the root cause of this phenomenon,and from the perspective of legal regulation,give corresponding suggestions to improve the purpose of unilateral release of administrative agreements by administrative organs in China.The first part of this paper firstly analyses the basic content of the unilateral release of administrative organs,which mainly focuses on the concept of unilateral release,its nature and legal attributes and sources.The second part analyses the problems in the exercise of the unilateral release by the administrative authorities from three perspectives: legal provisions,procedural provisions and judicial practice.The third part analyzes the root causes of the problems in China from the above-mentioned problems.Finally,the author proposes some suggestions from the perspective of regulating the unilateral release of administrative agreements from three perspectives: substantive law,procedural design and the rights of the relator to relief.