Legal Thinking of Administrative Agreement

Abstract: As a flexible way of law enforcement, administrative agreement is an important manifestation of the diversification of national governance. It plays an irreplaceable role in protecting the legitimate rights and interests of the people, promoting the construction of a country ruled by law, a government ruled by law and a society ruled by law, and promoting the modernization of national governance system and governance capacity. In-depth study of administrative agreement related legal issues has important practical significance.

Keywords  Administrative Agreement Administrative Agreement System Scope of Accepting Cases Application of Law

With the continuous advancement of the construction of a government under the rule of law, flexible law enforcement methods including administrative agreements have become important administrative management measures for the government to transform its functions, stimulate market vitality, and create new economic growth points. It is of great practical significance to carry out in-depth legal research and reflection on the legal characteristics of administrative agreements, the role and value of administrative agreement system, the scope of acceptance of administrative agreement cases and the application of law, and to safeguard the public interest and the legitimate rights and interests of administrative counterparts. it is of great practical significance to supervise the administrative organs to exercise their functions and powers in accordance with the contract, and to promote the integrity of government affairs.

The Concept and Legal Characteristics of 1. Administrative Agreement

(I) the concept of administrative agreement
On the application of the Supreme People's Court on May 1, 2015<中华人民共和国行政诉讼法>The first paragraph of Article 11 of the Interpretation of Certain Issues (hereinafter referred to as the "Applicable Interpretation") defines the concept of administrative agreement in law, that is, "in order to achieve public interests or administrative management objectives, the administrative organ shall, within the scope of its statutory duties, negotiate with citizens, legal persons or other organizations to conclude an agreement with the content of rights and obligations in administrative law, it is an administrative agreement stipulated in Article 12, paragraph 1 (11) of the Administrative Litigation Law."

The concept of administrative agreement is also known as administrative contract and administrative contract in theory. The reason why my country's "Administrative Litigation Law" does not adopt the concept of administrative contract, "mainly considering that the'contract' clearly stipulated in the" Contract Law "does not include administrative contracts. In order to avoid unnecessary disputes, the word'agreement' is used." [1]
 

The Legal Characteristics of (II) Administrative Agreement

According to the definition of an administrative agreement in the Applicable Interpretation, an administrative agreement has the following two main legal characteristics:

First, the subject of the agreement is constant, and one of the parties to the contract is an administrative organ or an organization authorized by laws, regulations and rules, which is in line with the general definition of administrative subject in administrative law and administrative procedure law;

Second, the purpose of the conclusion of the administrative agreement is based on the realization of public interest or the realization of administrative objectives, which is the substantive elements of the establishment of the administrative agreement.

In judicial practice, the purpose of the agreement is usually used as a substantive criterion for judging and identifying administrative agreements. For example, "In the process of urban development, in view of local financial pressure, it is difficult to meet the needs of rapidly increasing public facilities and services, and some local governments introduce social capital, Participate in the construction and operation of urban public facilities and service projects, and clarify the rights and obligations of investors and government parties through administrative agreements. The purpose of this type of agreement is to increase public facilities and service capabilities, while protecting the legitimate rights and interests of investors. It contains a large number of rights and obligations in administrative law and falls within the scope of administrative agreements." [2]

From the concept and legal characteristics of administrative agreement, administrative agreement not only embodies the general characteristics of voluntary, consultation and other contract system, but also an administrative act carried out by the administrative subject to carry out administrative management, with public law attributes, such as statutory authority, proper procedure, administrative preferential rights and so on. It is these characteristics that constitute the criteria for the distinction between administrative agreements and traditional civil contracts, and also mark the transformation of the traditional state governance mode based on administrative punishment to the governance mode of consultation and dialogue.
 

The Function and Value of 2. Administrative Agreement System
 

The so-called "administration" in administrative agreement is contract administration or consultation administration, which not only has the general attribute of administrative act, but also is different from the general administrative act. [3] Therefore, administrative agreements are different from traditional high-power administration and are agreements with administrative attributes. The administrative agreement system has become an important landmark institutional innovation in the transformation of my country's national governance mode. Its role and value in safeguarding public interests and the legitimate rights and interests of administrative counterparts are mainly reflected in the following aspects:
 

The Best System Innovation of (I) Governance

The administrative agreement system clarifies the rights and obligations of the two parties, which is not only conducive to better exercise of administrative functions, ensure the realization of administrative goals, but also avoid the bureaucratic problems of mutual wrangling, prevarication and irresponsibility. It is not only conducive to the transformation of service-oriented government, but also makes it the best institutional innovation in governing the country.
 

(II) can expand administrative participation and fully realize the purpose of administrative management.

In many areas of administration, effective cooperation between the government and the people is needed. In fact, not only the relative person depends on the administrative organ, but also the administrative organ depends on the relative person. In administrative management, when the administrative subject must be assisted by citizens, legal persons or other social organizations in order to achieve the established administrative purpose, how to better absorb the wisdom of the people and stimulate the creativity and initiative of the administrative counterpart has become the key to the comprehensive realization of administrative management objectives. Compared with administrative punishment, administrative agreement has high flexibility in terms of full consultation and mutual concessions, so administrative agreement has a very broad application stage in the overall context of building a government under the rule of law and service-oriented administration.
 

(III) is conducive to reducing the phenomenon of confrontation between the government and the people in the administration and obtaining good management results.

As a flexible management mode, administrative agreement reflects the modesty of administrative power. Different from administrative punishment, administrative agreement is a way of law enforcement to achieve the purpose of administrative management through equal consultation, and it is an important form innovation of modern national governance. In the process of administrative management such as the demolition of illegal buildings, the expropriation of urban houses, and the renovation of urban dilapidated houses, the use of administrative agreements instead of traditional violent demolition not only avoids social contradictions such as confrontation between the government and the people, but also demonstrates the civilized and orderly administrative management. it is often easier to achieve the legal and social effects to be achieved.
 

(IV) reconstructing the system and mode of administrative management and laying a new foundation for the relationship between government and business.

When the awareness of rights rises and the awareness of citizens rises, the traditional "imperative intervention administration" will continue to be impacted by the concept of "consultation and dialogue service administration. The establishment of the administrative agreement system conforms to the great changes in the way of administrative management and balances the relationship between the public power of the government and the private power of the people. The reconstruction of this system and mode of administrative management is the foundation of a new relationship between government and business.
 

The Deficiency of Legislative Regulation of (V) Substitute

The administrative subject can form the expected relationship of rights and obligations in administrative law with the administrative counterpart through the administrative agreement in the field that the law does not provide or does not specify, so as to make up for the deficiency of legislation and replace the effect of legislative regulation under certain conditions.
 

The Scope of 3. Administrative Agreement Cases and the Application of Law
 

The Establishment Significance of Administrative Litigation System of (I) Administrative Agreement

As the administrative agreements concluded between administrative organs and citizens, legal persons or other organizations are intertwined with the purpose of promoting public interests and realizing administrative management by administrative organs and the purpose of pursuing private interests by citizens, legal persons or other organizations, before the comprehensive revision of the Administrative procedure Law, there is a big dispute over whether disputes caused by administrative agreements should be resolved through civil litigation or through administrative litigation. "If the administrative agreement dispute is tried in accordance with the civil contract and the administrative subject is treated as an ordinary civil subject, it is difficult to effectively reflect the content of the public interest protection in the administrative agreement." [4] The establishment of the administrative litigation system for administrative agreements has eliminated the obstacles to filing cases arising from different understandings of the attributes of administrative agreements, unblocked the channels of judicial relief, facilitated the protection of the litigation rights of the administrative counterparties, and ensured the effectiveness of the channels of administrative litigation relief.
 

(II) Reflections on the Scope of Administrative Agreement Cases

"In recent years, disputes caused by land acquisition compensation, investment promotion, and government-social capital cooperation (PPP) activities, especially disputes caused by unilateral changes and termination of contracts by the government, have increased day by day. In order to supervise the performance of administrative agencies in accordance with the law and safeguard public interests, To protect the legal property rights of the counterpart, the Administrative Litigation Law clearly stipulates that administrative agreement cases fall within the scope of administrative litigation by the people's court." [5]

The revised "Administrative Litigation Law" clearly stipulates that the administrative agency's failure to perform the statutory duties of the administrative agreement and the unilateral modification or termination of the administrative agreement fall within the scope of administrative litigation. The "Administrative Litigation Law" does not clearly stipulate whether the counterpart of the administrative agreement or other interested parties raise objections to the signing of the administrative agreement by the administrative agency or the legal validity of the administrative agreement, whether it falls within the scope of administrative litigation. The Supreme People's Court's tendentious opinion is that "disputes over the signing of administrative agreements and their validity should fall within the scope of administrative litigation" '. [6] This guiding opinion will help supervise, standardize and improve the acceptance of administrative agreement cases.

Application of Law in (III) Administrative Agreement Cases

The general principle of the application of the law in administrative agreement cases is that the administrative legal norms should be applied first, and then the civil legal norms should be applied. Although administrative agreement has the commonness of agreement, it needs to be rigidly regulated by administrative law because of its particularity of form, purpose and content. There are six principles in administrative law, namely, legality, reasonableness, due process, high efficiency and convenience, honesty and credit, and unity of rights and responsibilities. Because of the modesty of judicial power, it is impossible to deeply participate in the operation of administrative power, so administrative litigation has always been based on the principle of legality review to supervise the administrative subject, so the main line of review in the trial of administrative agreement cases is legality, not the contract of civil law.

In the case of the administrative organ's failure to perform, change or terminate the administrative agreement, the administrative legal norms related to the administrative organ's failure to perform, change or terminate the administrative agreement shall be reviewed first, and then the legal norms related to the right of defense of first performance, the right of uneasiness, the right of change and the right of cancellation shall be reviewed in the civil law. Because the administrative agreement is concluded by the administrative organ with citizens, legal persons or other organizations within the scope of its administrative duties in order to realize the public interest or administrative management objectives, the purpose of its conclusion is for the social public interest, and its failure to perform, change or terminate the administrative agreement may also be for the purpose of social public interest. The administrative subject shall enjoy the "administrative preferential right" to unilaterally terminate or change the agreement in accordance with the law.

"In the examination of whether the administrative organ performs the administrative agreement in accordance with the contract, the civil legal norms shall be applied. Failure to perform in accordance with the agreement refers to the situation in which the administrative organ has performed the agreement, but its performance does not conform to the agreement of the administrative agreement. In this case, the administrative organ does not enjoy the right of administrative advantage according to law, so the administrative organ is equivalent to an ordinary equal civil subject, and if it fails to fulfill the obligations stipulated in the administrative agreement, it should apply the civil legal norms." [7]

In judicial practice, we should scientifically learn from the rules of civil law, keep pace with the times to understand the value commonalities and differences between public and private law means, and pay close attention to the development trend of the integration of public and private law, so as to constantly unify and optimize the legal application standards of administrative agreement dispute settlement.

Concluding remarks
 

"In an era when public and private are inevitably interdependent, the contract provides us with a potentially effective governance tool and a strong accountability mechanism". [8] The administrative agreement system plays an irreplaceable role in protecting the legitimate rights and interests of the people, promoting the construction of a country under the rule of law, a government under the rule of law, and a society under the rule of law, and promoting the modernization of the national governance system and governance capabilities. The administrative agreement system needs to be further explored through continuous research in theory and practice, in order to continuously promote the development of the administrative agreement system to a more complete and scientific direction.

Comments:
 

[1] Jiang Bixin and Shao Changmao: "The Supreme People's Court on the Application of the the People's Republic of China Administration."

A Guide to the Interpretation of Several Issues in Procedural Law

[2] "Integration of Judicial Views of the Supreme People's Court (New Edition) Administrative and State Compensation Volume I"

[3] Ma Jinliang: "Administrative Agreements Entangled between Administrative and Agreements"

[4] "Integration of Judicial Views of the Supreme People's Court (New Edition) Administrative and State Compensation Volume I"

[5] Jiang Bixin's Speech at the Expert Demonstration Meeting on Judicial Interpretation of Administrative Agreements, "Equal Protection of Property Rights

Promoting Integrity in Government Affairs

[6] [7] "Integration of Judicial Views of the Supreme People's Court (New Edition) Administrative and State Compensation Volume I"

[8][US] Judy Freeman, Cooperative Governance and the New Administrative Law, translated by Bi Honghai and Chen Biao-chong.
 

References:
 

[1] Jiang Bixin, editor-in-chief and editor of the Administrative Division of the Supreme People's Court: "the People's Republic of China Line

Understanding and Application of the Provisions of the Political Procedure Law and Judicial Interpretation, People's Court Press

[2] Li Guoguang, editor-in-chief and editor of the Administrative Division of the Supreme People's Court: "Administrative Law Enforcement and Administrative Trial"

Total Series 5

[3] He Xiaorong: "The Creation of Administrative Agreements and the Transformation of State Governance"