The Balance And Balance Of The Principle Of Proportionality On The Right Of Administrative Advantage In The Administrative Agreement

In the context of comprehensively deepening reform,government functions have been transformed and optimized accordingly.The government cannot and will no longer rely mainly on unilateral administrative behavior to manage social affairs.It needs to complete administrative tasks and public service objectives with more flexible administrative means.For the civil capital and technology to participate in the construction of the country and society,administrative organs adopt the new means of administrative agreement.On the one hand,the administrative agreement introduces the contract mechanism into the administrative management,on the other hand,the market management idea into the public service field.Administrative agreement has become an important administrative way for administrative organs to achieve administrative goals in modern society,and also an important starting point to promote the modernization of national governance system and governance ability.Sometimes it is inevitable that the administrative superior right existing in the administrative agreement damages the legitimate rights and interests of private subjects.To promote the healthy development of the administrative agreement system,it is necessary to seek the balance between public interests and private interests on the track of rule of law.In seeking the balance of public and private interests,the proportionality principle has a high degree of fit,that is,to balance public and private interests as the purpose.The principle of proportionality has the dual pursuit of control power and balance.It equalizes public and private interests by adjusting high-power administrative behavior and governing administrative discretion space.The system of administrative superiority-benefit also includes the mechanism of equity of public and private interests to achieve theoretical self-consistency,and the rule of law requires that the exercise of administrative superiority-benefit should conform to the control operation of modern governance system,so the principle of proportionality and the system of administrative superioritybenefit have theoretical compatibility.In practice,due to the inadequacy and imperfection of legal norms,as well as the expansion of administrative litigation case rationality review authority,the operation of administrative agreement system has a certain space for rationality review.Although some legal norms do not explicitly mention the principle of proportionality,the idea of proportionality principle runs through many articles,which provides the basis for the application of proportionality principle to restrain the exercise of administrative superior interest right.Whether in theory or in practice,the principle of proportionality has the legitimacy to check and balance the abuse of administrative preferential rights in administrative agreements.Administration is the essential attribute of administrative agreement,the realization of public interest is the first goal of administrative agreement,and the means of private law is only the way.However,its internal logic is still "public-private cooperation through consultation and exchange".Only when the public interest and the private subject interest in the administrative agreement have a proper weight ratio,can the governance effect be produced.The four sub-principles of the proportionality principle have differences in the content,Angle and direction of measurement,and have commonalities in the pursuit of common justice and goals.The coordination and unification of the differences and commonalities make the proportionality principle more accurate and effective in application.By comparing the second-order theory,third-order theory and fourth-order theory of proportionality principle,the paper determines the applicable level of administrative advantage balance.Form a logical approach of proportionality principle checks and balances: "Public welfare first,taking into account private interests-coordination and unification of differences and commonalities of sub-principles-determine the level of application".The complexity and changeability of cases in judicial practice lead to the inconsistence of judicial review.Therefore,the order of proportionality principle is not always applied step by step in specific cases,and the order of examination and application can be reversed to clarify the specific types of proportionality principle applicable level,which can be divided into: full scale application,interception application and general application,so as to meet practical needs.On this basis,the review elements of specific cases should be clarified,that is,the obvious impropriety should be taken as the review standard of specific cases,and the public interest,administrative discretion and administrative counterpart rights should be taken as the basis for the review intensity of specific cases,so as to make the checks and balances of the principle of proportionality more practical in practice and play a better role in controlling the abuse of administrative superior right.Give full play to the due function and effect of administrative advantage right and make administrative agreement become an effective and mature administrative means.