Supreme Law Second Tour: Whether the government meeting must belong to a civil contract

He Xiaorong editor pricing: 98.00 yuan Publishing time: June 2022

【brief introduction】

The Minutes of the Supreme People's Court of the Second Tour Court of the Court ", as a characteristic brand of the Second Tour Court of the Supreme People's Court, has been published in two consecutive series since the Court of Court, which has been well received. The minutes of the third series of judges published this time condensed the wisdom and strength of all judges of the Fourth Period of the Second Tour Court of the Supreme People's Court. It was the second tour of the Supreme People's Court to provide powerful judicial services for the high -quality development of the economic and social economic and social economic and socially in the tourist area. Concentrate. The legal issues involved in the book are some basic, cutting -edge complex and difficult problems encountered in the process of this tour area and even the Supreme People's Court in the process of handling the case. The publishing of this book is very valuable to help the trial concepts and trial capabilities of courts at all levels, and to ensure the correct and unified application of laws, and use this book as a "two patrol" to hold a copy of the party's 20th victory. Bo Li.

This book collects a total of 23 documents involving civil legal issues, 8 of which are the deputy secretary of the party group and deputy president of the Second Tour Court, and the Second Army of the Vice President of the Court is responsible for the nuclear draft. Draft, 11 articles were responsible for the review by the assistant judge of the Second Tour Court. The party group and deputy dean of the Supreme People's Court, the Secretary of the Party Group and President He Xiaorong of the Second Tour Court finally approved all the manuscripts.

————— this article is excerpted from the "Minutes of the Judge Meeting of the Second Tour Court of the Supreme People's Court (3rd Series)". The footnote is cut.

Whether the government conference will be a civil contract

(The Minutes of the 17th Tour of the Supreme People's Court of the Supreme People's Court 2021)

Summary of the case--

In August 1996, the City Government of A was converted to 240 human passenger transport elderly vehicles for human passenger tricycles. In November 1996, each of the original 161 passenger manpower tricycles charged a paid fee of 2,000 yuan per person. Since November 1996, the City A government has begun to implement paid operating rights. The relevant departments have charged relevant regulations on the 401 passenger human tricycles of 401 passenger transportation, but did not clarify the period for paid use of business rights. On July 15th and July 28th, 1999, the Municipal Government issued the "Announcement on Rectifying the Order of Small Vehicles in the Urban Vehicle" (hereinafter referred to as the "Announcement") and "Announcement") and "Announcement") and "Announcement") and "Announcement") and "Announcement" for two years. "Supplementary Announcement of the Operation Order of Small Vehicles in the Urban Area" (hereinafter referred to as the "Supplementary Announcement"). Among them, the "Announcement" requires that "the passenger manpower tricycle operator who has a legal license must be re -registered at the Office of the Municipal Traffic Police Brigade from July 19 to July 20, 1999. Registration of the right to operate, each car shall pay the business rights for business rights in accordance with the standard of 8,000 yuan (complies with Article 6 of the Announcement). 182 operators such as Zhang Moumou believed that the "Announcement" made by the Municipal Government A and requested the withdrawal of the above "Announcement" and "Supplementary Announcement".

"Legal Issues. "

Can Company A request the government to pay relevant fees in accordance with the meeting of the meeting, that is, can the conference discipline in the case be used as a civil contract basis to determine the rights and obligations between the parties?

Different opinions--

A said: negative said

The meeting of the meeting is not available. If there are specific administrative behaviors in the future, you can sue the subsequent specific behavior; if the meeting of the meeting is not delivered to the parties, its nature can only be internal documents. It only provides a reference for government decision -making. If only the meeting is based on the meeting, it will determine that the meeting of the meeting as a civil contract will arise in the application of administrative agreements and civil contracts. From the perspective of protecting the equity of Company A, Company A can sue to pay the corresponding costs in accordance with the situation of the administrative agreement.

B said: definitely say

The conference discipline in this case is involved in the loss of Company A. Although the minutes appeared as the form of government documents, the equal civil subjects involved in reaching consensus on the subjectity of contract and performance method can be identified as civil contracts. Company A can file a civil lawsuit accordingly, requesting the government as the party's obligation to fulfill the discipline.

"Opinion of the Judge Meeting"

Caiyi said

The core controversy in this case is the nature of the meeting of the conference, that is, whether it can be used as a civil contract to determine the rights and obligations between the parties. The meeting was involved in the relevant functional departments of government organizations, and after the company A's early -stage agreement was handled in the early stage, it was dealt with after the receipt of fees. The minutes of the meeting have the basic constituent elements of civil contracts. First of all, the municipal government belongs to the organs and legal persons in the Civil Code, and it can be used as the main body of a civil contract to engage in civil activities. Secondly, the minutes of the meeting of this case do not involve administrative management or public services, but civil rights and obligations agreed by the two parties. Finally, the minutes of the meeting were negotiated by Company A and the municipal government as an equal subject. They have three elements such as the subject, target, and performance method of the basic content of the contract. The minutes are civil contracts, and Company A can claim rights in accordance with the civil contract. 【Opinion Explanation】 -

1. The meeting of the meeting as the criterion for judgment of the contract

The minutes of the meeting are usually the process of recording the meeting or negotiations and the principles reached. "Generally referring to the decision of the government or the administrative organ to make a meeting on a specific affairs, and the specific functional departments of the lower level are in the name of the functional department in the functional department. Complied". Whether the conference discipline must be identified as a contract depends on whether the conference discipline must include the elements of the contract, including the contract subject, the meaning of the meaning, and the execution. Article 464, paragraph 1 of the Civil Code stipulates that the contract is an agreement to establish, change, and terminate civil legal relations between civil subjects. Regarding the nature, effectiveness, and rights and obligations of the meeting of the meeting, it is necessary to analyze it from its form and content. If it meets the provisions of Article 464 of the Civil Code and has the basic characteristics of the contract, it should be identified as a contract. The minutes of the meeting cannot be regarded as a contract because of their names as internal documents. Whether the conference must have a contract effect depends on whether the parties are negotiated with the meaning of the parties. If the two parties are in the form of the meeting minutes, the specific cooperation content is fully negotiated as an equal subject, which fully reflects the autonomy of both parties. For execution, in this case, the meeting of the meeting should be considered to have contract effects and should be regarded as a contract. In short, the conference discipline that sets up the right to the equal subject of the two parties and achieves the intention of the consensus is a civil contract and has legal effect. In this sense, the minutes of the meeting in this case belong to this situation and should be identified as a civil contract.

Second, the connection and difference between administrative agreement and civil contract

The administrative agreement is essentially a contract, and there are many things with civil contracts. For example, whether it is an administrative agreement or a civil contract, the rights and obligations are negotiated between the two or multi -party subjects. A special civil contract can only be adjusted by civil laws such as contract law. "How to define the administrative contract and what is the target of its norms, I am afraid it is still a question to be discussed. Even if there is an administrative contract, there must be a contract with the contract." (Contract) There is a large difference between the civil contracts. Only by distinguishing can it be conducive to the handling of these two types of contract disputes. Especially with the transformation of unilateral administration to contractual administration, it is difficult to adjust the principles and specifications of private law and specifications. The actual application of administrative contracts in administrative management is an indisputable fact. "

It is generally believed that the difference between the two is mainly manifested in the following six points: First, the administrative agreement is the administrative agency in order to achieve administrative management or public service goals, and the content of administrative law and obligations shall be concluded with citizens, legal persons or other organizations. Agreement; and a civil contract is an agreement to establish, change, and terminate the relationship between the establishment, change, and termination of civil rights and obligations between the natural person, legal person, and illegal organizations of equal subjects. Second, the administrative agreement may agree on jurisdiction and arbitration cannot be agreed; and civil contracts may agree on jurisdiction or arbitration. Third, the party signed by the administrative agreement must be the subject of the administrative subject, and there is no such requirement for civil contracts. Fourth, the legal status of both parties to the administrative agreement is not exactly equal, and the administrative subject enjoys the right of administrative benefits; and the status of both parties in civil contracts is equal. Fifth, the invalid situation of the administrative agreement refers to the "major and obvious violations" stipulated in the Administrative Procedure Law. It can also be applied to civil legal specifications to confirm that the administrative agreement is invalid. Regulation. The invalidation and removal situation of civil contracts shall be specified by civil law specifications such as the Civil Code. Sixth, the court's trial of the CPPCC's case can refer to the relevant regulations on the applicable civil law on civil contracts. In the case of trial civil contract cases, civil law can only be applied.

In short, the main difference between administrative agreement and civil contract is whether there is an administrative law and obligation relationship, that is, the main difference is the object rather than the subject, the content rather than the name, the substantial rather than the appearance. Judgment: (1) Whether to exercise administrative powers and fulfill administrative responsibilities; (2) whether it is the goal of realizing public interests or administrative management; Wait for administrative excellence. It is also said that whether the parties must be the administrative agency, that is, whether the parties, the parties, are the goals of administrative management or public services; the content elements, that is, whether the content of the agreement must have the rights and obligations of administrative law, Division of administrative agreements and civil contracts. Specifically, the initial agreement signed by Company A and a municipal government agreed to establish a certain control system for all gas stations in the city to avoid the gas stations when the refueling station was charged and dripped. Later, the government will give a return on Company A by the government to collect the documents. This agreement is a typical administrative agreement signed by the municipal government to regulate the problem of refueling and achieve administrative management. It is a typical administrative agreement. During the performance of the administrative agreement, due to policy adjustments, the state did not allow the state to charge such expenses, which caused the agreement to not be fulfilled. In this case, Company A negotiated with the government to resolve the aftermath issues that the agreement could not be fulfilled. The government convened relevant functional departments to discuss it to make up for how to make up the loss of Company A and give appropriate profit issues. The department issued a meeting minutes after the meeting. According to this judgment, the meeting of the conference is more reflected in the intention reached between equal subjects that the previous political agreement cannot be fulfilled and the aftermath issues, and the intention has executable content and does not reflect the color of administrative management or public services. The agreement has three elements: subject, target, and performance method that constitutes the basic content of civil contracts. In other words, in this case, the purpose of the administrative agency with the counterparty to sign the meeting is to achieve the demand for civil rights. It is not to achieve public interests or administrative management goals. In terms of the content of the benefit, the content of the meeting should be identified as a civil contract signed between equal subjects. Therefore, in order to safeguard its legitimate rights and interests, it has the right to file a civil lawsuit to request the court to determine the obligations determined by the meeting of the government to perform the meeting.

3. Civil contract parties cannot exercise the administrative premium rights in the administrative agreement

Administrative premium rights are the goals of the state to exercise their powers to effectively exercise their powers, implement their duties and achieve public interests, and give administrative subjects in the form of laws and regulations such as laws and regulations. Including administrative priority and the right to administrative income. Although my country's current legislation does not make a clear definition of the concept of administrative excellence rights, it is generally believed that the premium rights in administrative law are reflected in the rights of priority of administrative counterparts in the administrative contract. The rights of the opponent, the command of the contract performance, the right to supervise the contract, the right to unilateral change and the right to terminate the contract, and the sanctions. The "Administrative Agreement Judicial Interpretation" stipulates the content of administrative excellence in the administrative agreement in Article 16, paragraph 1 in the form of judicial interpretation. This article stipulates that in the process of fulfilling the administrative agreement, there may be serious damage to national interests and social public interests. After the defendant's administrative behavior of changing and lifting the agreement, the plaintiff requested to revoke the behavior. The judgment rejected the plaintiff's claim; if the plaintiff caused losses, the defendant was compensated. From the perspective of this provision, the typical typical reflection of the administrative premium right in the administrative agreement is reflected in the reasons for the legal specifications to give administrative organs for public interest, and have the power to break through the contract, unilateral change, and termination of the agreement. And the exercise of the power does not require the consent of the opponent of the agreement and can exercise unilaterally. This is different from the spirit of civil contracts focusing on contracts and freedom of contracts. Of course, the exercise of administrative premium rights must meet strict conditions, that is, "the situation that may seriously damage national interests and social public interests" must also be met. Corresponding compensation to prevent abuse of administrative preferential benefits in administrative agreements. After the government exercises the right of administrative excellence, the opponent of the agreement still has the right to seek relief by filed a lawsuit.

The change of civil contracts is mainly manifested in the negotiation of parties provided in Article 543 of the Civil Code, which can change the contract. Of course, negotiation between the two parties does not harm national interests and public interests. The changes in other methods also include changes in accordance with the law and passed the court's decision or the arbitration agency's ruling, which mainly include changes in the situation of legal reasons, such as changes in the situation stipulated in Article 533 of the Civil Code. Therefore, in civil contracts, generally speaking, unilateral changes without the consent of the two parties are invalid. This is also to prevent the parties to the party from changing the contract without authorization or arbitrarily, abuse the freedom of contract, and destroy the contract binding power. Obviously, this is different from the unilateral change of administrative premium rights in the administrative agreement.

Specific to the dispute in the case, the initial agreement signed by Company A and a municipal government agreed to establish a certain control system for all gas stations in the city to avoid the gas stations from charging and running. The government will give a return on Company A by the government to collect the documents. During the implementation of the administrative agreement, the state did not allow the state to charge such expenses due to policy adjustment, resulting in the failure of the agreement. At this time, in view of the administrative agreement, the municipal government has the right to exercise the administrative premium right to terminate the agreement. After the agreement was lifted, Company A negotiated with the government to solve the problem of the aftermath of the agreement and followed the minutes of the meeting of how to make up for the loss of Company A and the impact of the proper profit. As mentioned earlier, it belongs to the civil contract. There is no right to unilaterally change the meeting of the meeting. Of course, for the nature attributes of the later minutes, there are also opinions that meet the characteristics of administrative agreements. For example, in the administrative agreement, the administrative agreement will change the agreement to the agreement on the administrative premium right. It is common, so the minutes of the conference have a certain reason for administrative agreements and civil contracts. However, in civil disputes involved in the case, the conclusions of relevant meetings cannot be easily denied the minutes of the relevant meeting. Extended reading-

1. The origin of administrative agreement

Administrative agreements are also known as administrative contracts or administrative contracts internationally. According to Mr. Wang Mingyang, the administrative contract "is a systematic system in French administrative law." "After World War II, administrative contracts were widely used in economic development and resource development. When the government implemented an economic plan, the government avoided administrative orders. Instead, it signed a contract with the enterprise. The latter undertakes some of the tasks in the plan. France calls this implementation plan as a government contract policy, which is a major improvement of traditional implementation plans. In addition, in scientific research, education, and other matters, the government is also the government. Often signed a contract with the latter, which stipulates the task that the latter should complete. The contract method is becoming more and more widely used in French administrative law. "However, scholars in Taiwan in my country generally believe that administrative contracts are first recognized in Germany. Although "contract freedom" in private law has been the basic principle of ingrains for thousands of years, in the era when administrative sanctions became the core of administrative law, "the existence of administrative contracts in the field of public law is impossible." "Therefore, the administrative contract was silent for half a century. It was not until the 1950s that it was slowly discussed." As the administrative contract was strengthened and code, the administrative contract was established in parallel with administrative sanctions. "It was not until 1966 that the German Federal Administrative Court made the first judgment on administrative contracts. It was believed that the administrative contract was allowed. The final implementation was that the German federal administrative procedure law clearly stipulated the administrative contract in 1976 . So far, Germany is not discussing whether an administrative contract is important, but how to make the content of the administrative contract more clearly. "Affected by Germany, Taiwan's Taiwan region has also made the administrative contract by its so -called" administrative procedure law ". The legal system has developed from an early silence to the beginning of administrative acts.

With the change of government functions, administrative contracts have also been applied in the field of administrative management in my country, but there is no administrative procedure law in my country, so it cannot make uniform regulations on administrative contracts in the administrative procedure law. Although the State Council's "Outline of Comprehensive Promoting Administrative Implementation in accordance with the law" released in 2004 has requested the role of giving full play to the role of administrative contracts, but in the process of formulation of the "Contract Law", civil law scholars have doubts about whether administrative contracts are in administrative contracts. As for the administrative contract, the administrative contract How to divide the boundaries with civil contracts is more opposite. [4] Because the "Administrative Litigation Law" was limited to specific administrative behaviors in the past, the internal opinion of the court was not consistent, which also made it difficult for administrative contracts as a behavior of both parties to enter administrative lawsuits. In practice, some courts are accepted in accordance with civil cases, and some courts are accepted in accordance with administrative cases, resulting in the basis of the trial basis, applicable rules and the results of trials.

During the revision of the Administrative Procedure Law, the call for the scope of administrative contracts into the scope of administrative lawsuits was high, but there were also great controversy. The draft draft amendments and the first review of the amendment and the second review drafts have no provisions on administrative agreements. When the tenth meeting of the Standing Committee of the Twelfth National People's Congress conducted the second instance of the amendment, some members of the Standing Committee of the National People's Congress suggested that the administrative contract was included in the scope of the case. There are three reasons: First, administrative subjects and administrative relatives signed administrative contracts based on the needs of public management, which already exists in real life. The "Outline of Comprehensive Promoting Administrative Implementation in accordance with the law" issued by the State Council affirmed the administrative contract as one of the results of reforming administrative management methods. Therefore, the institutionalization of administrative contracts has become an important measure for government administration and standardized management in accordance with the law. Second, the administrative contract has public power attributes. The agreement provisions for judging the administrative contract are effective, legal, and whether it can be executed or recovered, which often involves judgment on the effectiveness and legitimacy of administrative behaviors and shall be resolved through legal rules. Third, in the current judicial practice, a large number of administrative contract cases have been prosecuted to the people's courts at all levels, but people's courts at all levels have different admission to administrative contract cases. specification.

The "Administrative Procedural Law" was eventually included in the scope of administrative litigation cases that "administrative organs fail to perform in accordance with the law, fail to perform in accordance with the agreement or change the law, terminate the government franchise agreement, and the land collection compensation agreement". The hard -won breakthrough (this is also due to the abandonment of the concept of specific administrative actions in a certain sense, thereby clearing the legal obstacles of the administrative behavior of the two parties); on the other hand Be cautious and incompetent. The prominent performance is that the concept of "administrative contract" is not clearly used, and even the "administrative agreement" that is slightly low -key has not appeared. Instead, it is only based on franchise agreements, land and house acquisition compensation agreements. concept. Although this reflects the game and concessions in the legislative process, the legal concept of administrative contract suppression or administrative agreement has not occurred at the physical legal level, which is also an important factor. During the drafting of the "Administrative Agreement Judicial Interpretation", many opinions believed that, first of all, it is necessary to define the concept of administrative agreement, which is undoubtedly helpful for identifying the administrative agreement in judicial practice. Moreover, there have been precedents for judicial interpretation of important concepts that have not defined administrative litigation laws in history in history. When defining the administrative agreement, the judicial interpretation of the drafting of the relevant relevant information on the territory has been studied and referenced. Article 54 of the German Administrative Procedure Law stipulates that the legal relations in the field of public law can be established, changed or revoked by contracts (public law contracts), but the law is not allowed to be allowed. If the person with a stakeholder should have done administrative acts, the administrative organs can also sign a public law contract with them to replace administrative actions. This article determines the legal status of the administrative contract. Unless the law is prohibited, administrative agencies can use administrative contracts as an administrative management method that can be selected to replace the administrative behavior made by the administrative organ. German administrative law scholar Hartmut Maorrell believes that administrative contracts refer to "contracts that are based on administrative legal relations, and establish, change, or eliminate administrative legal rights and obligations." Although they are all contracts, the administrative contract is different from the private law. "The difference between administrative contracts and other contracts is the object." It "signed by the administrative organs and belongs to the field of administrative law." "Just like administrative acts, administrative contracts are also dealt with in administrative law and have external legal effects on individual events." "The only, but also affects the difference in the form and method of formation. The administrative behavior is the administrative organs of the administrative organs. Unilaterally, the administrative contract is made by the administrative agency and citizens. The above differences make the administrative contract not only have a completely different shape from administrative behavior, but also has important legal consequences. Consequences, facts, or legal state changes and the possibility of abolition and execution. "[8] Mr. Wang Mingyang also believes that" the administrative agency also determines the legal status of the parties in addition to determining the legal status of the parties in accordance with the unilateral meaning of the party Consultation, in accordance with the consensus of the intentions of the two parties, set up, change or eliminate some kind of rights and obligations between the administrative organs and the parties. This method is called contract behavior. " Mr. Wang Mingyang believes that the administrative organs may also sign a civil contract or private law contract with private personnel. From the content of the contract, only "contracts in administrative law are called administrative contracts or public law contracts."

It can be seen from the above discussion that the core characteristics of the administrative agreement are reflected in the following aspects: first, the behavior between the administrative organs and the private person in the subject; the other is that the object belongs to the field of administrative and law; The contract signed by the legal person or other organizations; the fourth is the creation, change or elimination of some rights and obligations in the legal effect. According to this, Article 1 of the "Administrative Agreement Judicial Interpretation" stipulates: "In order to achieve administrative management or public service goals, administrative organs have negotiated with citizens, legal persons or other organizations with the content of administrative law and obligations. Article 12 (1) Administrative Agreement stipulated. "

Second, the elements of administrative agreement

Judging from the provisions of Article 1 of the Administrative Agreement Judicial Interpretation, the administrative agreement shall include the following four elements. Only when these four elements are met can they belong to the administrative agreement.

(1) Subject element- "administrative organs, citizens, legal persons or other organizations"

Administrative agreement is an agreement set up between administrative organs, citizens, legal persons, or other organizations. The parties to the administrative agreement should be an administrative organ that exercises public power, or the organizations authorized by laws, regulations, and regulations, and other organizations that have been entrusted by administrative agencies to exercise public management functions in accordance with the law. Other organizations. This is the condition that the administrative agreement should meet in terms of signing the subject. However, it should be noted that the agreement signed by the administrative organs is not necessarily an administrative agreement. Article 3 of the Administrative Agreement Judicial Interpretation is listed on the two situations that are not belonging to the administrative agreement: The establishment of an agreement, an administrative organ and a labor -and -person agreement set up by their staff are not the scope of the administrative lawsuit of the people's court.

(2) Purpose element- "In order to achieve administrative management or public service goals"

The purpose or goal is an important criterion for identifying the administrative agreement. The signing of the administrative agreement should be to achieve the goal of administrative management or public service. The purpose is public welfare, not to meet and realize the interests of the administrative organs. If the administrative organs signed a construction, maintenance, procurement and other agreements with the other party of the contract for their own needs, it is a civil contract signed between equal subjects and does not belong to an administrative agreement. In the judgment of public welfare purposes, there is a point of view in practice, "" When judging whether there is a public interest, whether there is a clause in the agreement in the agreement is an important criterion, that is, as long as the administrative agency enjoys an agreement with the clause of administrative preferential interest, Most of them can predetermine their public interests. In addition, responsibilities and content elements can also be used as assistance identification standards. " (3) Meaning factor- "negotiation and establishment"

"According to the general legal theory, especially the research results in civil law, the contract is the two parties (or multi -party) legal subjects on the implementation of specific legal consequences. ). "[Administrative agreement is also a contract, and it should also be" the two parties (one party is an administrative organs, and the other is the people). "It should reflect the general characteristics of equality, voluntary, negotiation, and intentional contract system. "Without such an agreement, the administrative contract does not exist." However, "negotiation and establishment" does not mean that the people and administrative organs in the administrative agreement are a completely equal legal relationship. "Because the parties should be equal in the form of form, it is essentially unequal. It means that there is a difference between the advantages and disadvantages, but although the law allows the administrative organs to conclude a contract with the people, it still needs to be restricted by the law. The possibility, if there is no tailoring space, the contracts concluded, basically the implementation of a regulations, cannot be called an administrative contract ... This is different from the space of the two parties in the nature of the general contract. "

(4) Content elements- "content with administrative law and obligations"

The content of the administrative agreement must have the content of the rights and obligations in administrative law. "The content of administrative law rights and obligations", this sentence borrows the "contract theory" that depends on German law as a standard for distinguishing administrative contracts and private law contracts. The theory believes that "a contract must be judged that a contract is a private law contract and is under the jurisdiction of the civil court; or the administrative contract should be under the jurisdiction of the administrative court. The so -called contract target "refers to the rights and obligations of the contract terms or content, and the relationship between the rights and obligations should be judged in principle, and the content of the contract should be comprehensively judged, and it cannot be observed separately for individual contract terms." Therefore, in the German law, it is determined that a contract is determined whether a contract is an administrative contract or a private law contract mainly depends on the contract of the contract, that is, whether it has the rights and obligations of administrative law. "Its contract marks must be the rights and obligations in public law, that is, the legal relationship that gives the rights or set obligations to the administrative organs by the adjustment of public law." Define the nature of the contract. If the administrative organs signed a contract with the private person, it is agreed that the latter will take out private land for road repair. The contract does not have the obligation to the administrative organs, and only the contract of the contract from the private land cannot judge the nature of the contract. For this reason, the purpose of the contract must be combined. In this case, it is used in the purpose of public law. Then, the relationship between the contract is adjusted by the regulations of the public law, so it is an administrative contract. "It can be seen that although the contract is to determine whether it belongs to the administrative agreement whether it belongs to the administrative agreement Core standards, but if necessary, it can also be combined with a comprehensive judgment of the contract, that is, the signing of the agreement is to achieve administrative management or public service goals.

Third, the concept and characteristics of administrative excellence

Administrative premium rights refer to the special power of the administrative organs to surpass contract constraints in order to achieve administrative management or public service purposes or protect the public interest. Administrative excellence has the following characteristics: first, statutory. Administrative premium power is an administrative power. The exercise of content and procedures must strictly follow the law, that is, "the law of the law cannot be done." Second, dedicated. Administrative premium rights can only be exercised by administrative organs, and can only be exercised to safeguard national interests or social public interests. In addition, unlike general civil legal relations, the administrative premium power is the unilateral power of the administrative organs, and its exercise does not need to obtain the consent of the administrative counterpart. Third, the unity of rights and obligations. That is, rights and obligations are relative. As a power, the administrative organs must exercise the right to benefit in accordance with the conditions and procedures stipulated in the law, and shall not transfer it at will. At the same time, as an obligation, the administrative organs cannot arbitrarily abandon the right to administrative benefits. In other words, the practice of abuse of power and administrative inaction is an improper use of administrative premium rights, which will also harm national interests or social public interests.

4. Administrative Agreement and Administrative Outstanding Power

At present, in the implementation of the administrative agreement, the controversial is more controversial is the unilateral change or termination of the contract. In the process of reviewing such cases, the people's courts reviewed whether the administrative organs complied with the following principles in the process of exercising the administrative superiority: first, the principle of public welfare priority. That is to say, the administrative organs are based on the need to safeguard national interests or the needs of social public interests. Generally speaking, administrative premium rights should be used in the case of exhaustive methods. If the administrative organs can recover the agreement to the normal performance state through the efforts of the administrative counterpart or the administrative counterpart, the administrative premium right is unnecessary. Therefore, recognition of public welfare priority does not deny the protection of private interests. Second, the principle of freedom of contract. Although the administrative agreement is different from civil contracts, it has some private law attributes of civil contracts. The administrative agreement is also established on the basis of the consolidation of both parties. Therefore, the administrative organs should ensure the freedom of contract of administrative counterparts within the scope of the administrative agreement, respect the wishes and rights of administrative counterparts, and cannot exercise administrative excellence in accordance with the administrative excellence. The interests of the rights will be damaged at will. Third, the principle of integrity. This principle mainly refers to the principle of trust protection. The principle of trust and protection is the principle established by the principle of integrity of the private law. It refers to the administrative decision that the administrative organs shall not revoke or change the administrative decision that has not been revoked or changed through legal procedures. After the administrative behavior takes effect, it will have legal effect. Based on the respect and trust of the authority of administrative organs, the public will dispose of their own rights based on the administrative behavior that has taken effect and arrange their own production and life, so that the entire society can achieve harmony and stability, and there is a certain existence The preface is good. However, if the administrative organs cannot guarantee the stability and expectedness of administrative behaviors, and change at will, it will cause the counterparts of administrative behaviors and other public public to be at a loss, thereby causing confusion in social order. Fourth, proportion principle. Also known as "the principle of excessive prohibition", that is, the individual interests that the administrative organs must sacrifice when exercising the right of administration must be less than the public interests they want to protect. The specific measures and means taken by the protected should be required. The smallest way is also a reasonable administrative requirement. Fifth, the principle of balance of power and responsibility. The administrative agreement belongs to dual affairs. Although the administrative organs enjoy certain privileges to a certain extent, the rights and obligations of the two parties are not equal, but the equal balance should be balanced. For both parties. No party should bear illegal and unreasonable obligations, and of course, it does not enjoy excessive rights. Sixth, the principle of protecting the counterparty. If the administrative agency is given excessive administrative privileges in the review of the administrative association case, then the administrative organs may change or terminate the contract at will with the pretext of safeguarding the national interests or social public interests, causing major losses to relatively people. The loopholes in legal regulations are often exempted from the legal responsibility of the administrative organs, which causes the counterparty to not obtain the deserved relief and endangers the development of social stability and the development of the economy. Therefore, the exercise conditions of administrative prefixation should be regulated, and even in order to achieve public interests, it cannot be achieved by adding additional burdens to administrative counterparts. Administrative organs shall conduct equal compensation or compensation for the damage caused by administrative relative artificial artificial artificial artificial artificial artificial artificial people. In short, the administrative organs exercise administrative excellence in accordance with the law. The exercise of administrative excellence must have a legal basis and cannot exercise or give up arbitrarily. In judicial practice, it is necessary to pay attention to the use of administrative premium rights in the administrative agreement. The Supreme People's Court complained to the Jingzhou Economic and Technological Development Zone Management Committee and the Case of Jingzhou Municipal People's Government [(2017) Supreme Law Shen Shen No. 3564] in the Jingzhou Economic and Technological Development Zone Management Committee. Since the administrative organs choose to "replace" unilateral administrative behavior in a form of conclusion of the administrative agreement, after the agreement should be concluded, it should be aware of the unilateral administrative behavior in the unilateral administrative behavior. If you go out, it will not only be failed to be fair, but also violates the foundation of the legal relationship between the parties by the administrative agreement rather than the unilateral administrative behavior. Of course, the purpose of public interest based on administrative agreements and administrative management shall be given a certain unilateral change right or termination of the administrative organs, but the exercise of this administrative premium right must be subject to strict restrictions. First of all, it must be to prevent or remove major hazards to public interests; second, when a unilateral adjustment or unilateral termination is made, the specific situation of public interest should be explained; again, unilateral adjustment must meet the principle of proportions, which will cause it to bring this, which will bring this will bring it. The side effects are minimized; in the end, the losses suffered from the counterparty or the corresponding compensation according to law or in accordance with the contract. It is particularly important that the administrative superiority is the unilateral disposal made by the administrative organ outside the framework of the contract law. That is to say, the administrative agreement can continue to be fulfilled in accordance with the agreement. Essence If the purpose of the contract is not achieved because of the derived breach of contract, the administrative organs can take corresponding measures in accordance with the provisions of the contract law or the contract of the contract, and there is no need to exercise the administrative premium right.

Category retrieval report--

1. Searching tool: French letter platform -case retrieval

2. Keywords: Minutes of Government Conference, Administrative Agreement, Civil Contracts; Filter Conditions: Trial Court -Supreme People's Court

3. Search results: retrieve the keywords "Minutes of Government Meeting, Administrative Agreement, Civil Contracts", and search for 8 civil cases, including 2 cases in the second instance, 1 retrial case, and 5 cases of retrial cases. Four.

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