Research On The Application Of The Principle Of Situation Change In Administrative Agreements

Situation refers to all objective facts that are the basis of the contract at the time of contract and have nothing to do with the subjective will of the parties to the contract.The principle of situation change is easily confused with concepts such as force majeure and commercial risk.In addition,the administrative organ’s change and termination of the contract based on the principle of change of situation is also different from the change and termination of the exercise of administrative advantage rights,and the two should be distinguished.The principle of situation change was originally an important principle in civil contracts.Based on the development trend of common governance regulated by public and private law and the characteristics of the "contractuality" of administrative agreements,the principle of situation change has been applied in administrative agreements and has gradually become an important principle in administrative agreements.In addition,the contractual attributes based on the administrative agreement and the application of this principle in the administrative agreement play an important role in providing remedies for the administrative counterpart and balancing the interests of both administrative organs and private subjects.The application of this principle in the administrative agreement is reasonable and legitimate.Because civil contracts and administrative agreements belong to different jurisdictions of private law and public law,and the particularity of administrative agreement,there is a difference between civil contract and administrative agreement when applying the principle of situation change in practice.There are four main aspects: different conditions for the change of circumstances,different ways for the subject of the agreement to exercise power,different contents of judicial review,and different legal effects after the application of the principle.Since China’s administrative legislation has not yet made specific and clear provisions on the principle of change of circumstances,China’s judicial practice will refer to relevant civil legal norms for rulings when adjudicating cases related to administrative agreement disputes.However,due to the particularity,diversity and complexity of individual cases,judicial practice will also have different interpretations and judgments in the application of this principle to adjudicate cases,and there are many corresponding problems.Through case analysis,the author takes several typical types of administrative agreements as the starting point to analyze and summarize the application status of the principle of change of circumstances in typical administrative agreements.On this basis,the problems existing in the application of the principle of change of circumstances in administrative agreements in judicial practice are summarized,and it is found that whenever the situation changes in the dispute in an administrative agreement case,there will be administrative organs that directly exercise administrative preferential rights to change or terminate the agreement without consulting with private entities;There is a problem that an administrative entity abuses its dominant position to directly change or terminate the administrative agreement,harming the interests of the other party;There is a problem of administrative organs and judicial departments confusing relevant concepts and abusing the principle of change of circumstances to handle disputes;There is also the problem that there is a single remedy,and the administrative counterparty can only solve the problem by resorting to the court;There are also problems such as that the administrative entity does not compensate the administrative counterparty after changing and terminating the agreement,or the compensation is unreasonable.Finally,analyze and sort out the problems existing in the application of the principle of situation change in the current judicial practice in the administrative agreement,and put forward suggestions for solving problems in the current judicial practice with reference to the relevant norms of civil laws and extraterritorial legal norms.It mainly applies the principle of change of circumstances prudently to administrative subjects and judicial organs,gives administrative counterparts the right to change and terminate,builds the obligation of re-negotiation,and improves the compensation mechanism of administrative subjects.