Study On Unilateral Termination Of Judicial Review Of PPP Agreement By Administrative Subject

With the gradual improvement of the role of market allocation,the traditional obedient administrative management mode has gradually evolved into the cooperation between government and social capital(PPP)mode,and the supply of public services is no longer a single administrative supply,but a diversified market contract supply,which also makes the PPP agreement different from the traditional power behavior,with both administrative and consenting.The administrative character of PPP agreement is mainly reflected in that it gives the administrative organ unilateral cancellation right to deal with the major change of public interest.The existence of this power breaks the original agreement of the contract,which makes the agreement of PPP agreement questioned.Due to the cognitive deviation when introducing French "administrative superiority theory" and German "special termination right theory",our country is too emphasis on the privileged status of unilateral termination right,and neglect the limit of that right and the protection of the legal rights and interests of the other party in agreement.This makes the right of unilateral termination easy to be abused in administrative practice.It also leads to some problems when the court examines the unilateral termination of the agreement by the administrative subject.These judicial review problems mainly include: first,some judges still follow the logic of "action lawsuit" of traditional administrative litigation,and the review of unilateral cancellation right is limited to the legality review,which is not comprehensive enough.Second,the identification of conditions for the exercise of unilateral cancellation right is not clear,the identification of public interest lacks several steps,and there is a mixed use of unilateral cancellation right and legal cancellation right.Third,the unilateral cancellation of the right to exercise procedures of the review of cognition is not enough attention to illegal procedures.Fourth,the judgment result lacks good relief effect.In the remedial judgment,the provision of remedial measures is too general,the application of compensation standard is relatively simple,and more attention is paid to the protection of public interests,and the lack of adequate relief for the interests of the counterpart.In order to get out of the judicial dilemma,first of all,the principle of judicial review is clarified.According to the trial logic of "action of contract",the legality review is given priority and the way of contractual review is taken into consideration,and the PPP judicial review rules are constructed.At the same time,reasonableness examination should be used as a supplement to avoid the legality examination being a mere formality.Secondly,make clear the criteria for determining the conditions for the exercise of unilateral cancellation right.Define the "public interest" step by step,and examine whether the occurrence of damage to the public interest is unforeseeable and unaccountable.Third,to enhance the intensity of lifting procedures.The phenomenon of "emphasizing entity over procedure" should be changed.In the reality that relevant procedures have not been perfected,the principle of due process should be introduced as the basis for examination,focusing on whether the administrative organ has fulfilled the obligation of informing and explaining reasons and whether the hearing procedure conforms to legal provisions.Finally,improve the judicial review mechanism of administrative compensation liability.Further clarify the application conditions and procedures of the remedial judgment,and strive to completely resolve the case disputes in a lawsuit.If the unilateral dissolution of the administrative subject objectively causes the loss of the opposite party,it shall make reasonable compensation for the actual loss and available benefits of the opposite party with reference to the civil legal norms,prevent the abuse of power,and achieve the balance of public and private interests.