Research On The Reference Application Of The Civil Code In The Review Of The Effect Of Administrative Agreements

The Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Agreement Cases fully included disputes over dissolution,disputes over performance,disputes over effect,etc.The construction of the rule system of the effect of administrative agreements has become a prepositive problem in resolving various disputes.The second paragraph of Article 27 takes the Civil Code as the rule supply of the effect of administrative agreements.However,the rules provided by the Civil Code must be compatible with the administrative characteristics of administrative agreements.Therefore,not all rules of the Civil Code can be applied as reference and necessary restrictions and amendments may be made.Based on the dual characteristics of administrative agreements and fully combining with judicial cases,this paper systematically examines the reference space of the provisions of contract effect in the Civil Code.In addition to the introduction and conclusion,the article is divided into four parts:The first part discusses the review of the effect of administrative agreements,the connotation and basis of the reference application of the Civil Code.The review of the effect of administrative agreements should focus on the status of effect.Compared with direct application and analogy application,reference application has the nature of "statutory analogy",and attention should be paid to the adjustment of legal provisions when being applied.The commonness of public and private laws,the dual characteristics of administrative agreements,and the provisions of judicial interpretation all lay the foundation for the reference of civil contract provisions on effect.The second part discusses the reference and application space of the elements and effective scope of the valid administrative agreements to the Civil Code.In principle,the elements of the valid civil contract can be applied by reference.The requirements for the capacity of the administrative organ should be transformed into the capacity of contracting,and should not take the Civil Code as reference.At the same time,the administrative agreement should not be in oral form.The administrative agreement shall be as valid as possible.A valid administrative agreement will have internal and external effects.The administrative agreement is bound by the principle of relativity,and there will be new exceptions to the principle,for example,the subject qualification of plaintiff and defendant.The third part discusses the reference and application space of invalid administrative agreements to the Civil Code.The judgment of invalidity of the administrative agreement should realize the integration of public and private laws.False representation and malicious collusion are rare in administrative agreements,but occasionally overlap.The level of legal provisions in the case of invalidity in violation of the "law" should be adjusted.The provisions should include local regulations and rules,but should exclude normative documents,and should not be divided into two categories: effective mandatory provisions and administrative mandatory provisions.In principle,the invalidity of the administrative agreement should be traced back to the past,and the liability for fault in contracting can be applied to the compensation for losses.The fourth part discusses the reference and application space of the defect state of administrative agreements to the Civil Code.Article 70 of the Administrative Procedure Law cannot be the basis for revocable administrative agreements.Private subjects face difficulties in adducing evidence when the provisions of fraud and coercion in the Civil Code are applied.When taking the provisions of obvious unfairness as reference,its constituent elements should be amended and the subjective elements should be presumed to have.In order to prevent the administrative organ from arbitrarily denying the validity of the agreement after signing,the fraud,coercion,obvious unfairness and major misunderstanding that it claims should be strictly identified.Due to the defects of the capacity,agency power and disposition power of the private party,the pending state of the administrative agreements’ effect is existent.However,the lack of agency or disposition power of the administrative organ need not take the Civil Code as reference.