Study On The Exercise Of The Right Of Rescission Of Administrative Subject In Administrative Agreement

As a new administrative management mode,the administrative agreement kneads the two administrative means of compulsory administration and cooperative administration,which indicates the development trend of public service in the future.Since administrative agreement became actionable in 2015,administrative agreement cases began to come into public view.In 2019,the promulgation of the Provisions of the Supreme People’s Court on Some Issues concerning the Trial of Administrative Agreement Cases pushed the research on specific system of administrative agreement to a new peak.Administrative agreement is also on the rise in judicial practice.More and more social fields have applied administrative agreement,which also reveals that there are still some problems that need to be solved,among which the unilateral cancellation right of administrative subject is more prominent.Although the existing rules of administrative agreement have framed provisions,However,the application of unilateral termination of the right of administrative advantage or civil legal norms related issues still need to be perfected.According to the existing judicial practice,it is found that the unilateral right to rescind has the following problems.First,there are different exercise of the right to rescind in the case,and the appearance of an administrative agreement to rescind conditions may lead to the simultaneous response of different right to rescind,and the lack of a clear exercise sequence.Second,the identification of the exercise conditions is inconsistent,the understanding of the definition of the public interest is inconsistent,and the confusion about whether the change of circumstances and force majeure can cause the right to rescission.Third,there is a lack of procedures for the right to discharge.Although the judicial interpretation mentions paying attention to the performance of procedures,it is not clear what procedures to perform,and different procedures are applied in practice.Fourth,the counterpart protection is not perfect.The scope of compensation obtained by the counterpart after the termination of the agreement is not clear enough.In order to solve the above problems,from the perspective of theory and practice,the practical view of the classification of the right to rescind is integrated with the theory of the classification of the right to rescind,the rationality and legitimacy of the exercise of the classification of the right to rescind are demonstrated,the dual use system of unilateral right to rescind is constructed,and the field of use of the two kinds of right to rescind is explained.The exercise system is explored,and the following suggestions are put forward: First,for the exercise order of different rescission rights,the rescission rights which are not based on administrative advantage rights are selected as the first order.Secondly,the conditions for the exercise of the two kinds of rescission rights are perfected,the connotation of public interest is defined,and the application of the rescission of quasi-civil law contracts is clarified.Thirdly,the procedure of unilateral cancellation right is designed,and different specific procedures are constructed respectively from two kinds of cancellation right.Fourthly,the scope of compensation for the counterpart of the agreement is determined,and the situation of compensation for direct losses and expected losses is sorted out.