行政协议单方变更或解除权行使条件的司法认定

Judicial Confirmation of the Conditions for the Unilateral Change or Cancellation of the Administrative Agreement

明确界定行政协议单方变更或解除权行使条件,对于督促行政机关依法行政有重要意义。经案例梳理发现,在《适用解释》施行前后,行政机关单方变更或解除协议的条件由多元化逐渐趋向二元化,即公共利益需要和其他法定事由。法院对公共利益需要的解释亦经历了从事实上的公共利益需要到法律规定的公共利益需要的嬗变,其变异的前提在于公共利益概念的高度不确定性。对公共利益解释的变异隐含着司法审查强度的变化,其由强到弱可分为三个层次。经法政策考量,当前我国宜适用强度居中的"含公共利益的所有法定理由"标准。以德隆案为例,该标准的适用进路可分为以价值填充为手段的个案公共利益之确定、比例原则框架下的法益衡量两个步骤。

Clearly defining the conditions for the unilateral changes or termination of administrative agreements is of great significance for supervising the administrative organs. After reviewing a lot of cases,it is found that before and after the implementation of the ＂applicable interpretation＂,the conditions for the unilateral change or cancellation of the administrative agency have been gradually changing from diversification towards duality—— public interest needs and other statutory reasons. The interpretation of the needs of the public interest by courts has also undergone a change from a factual public interest requirement to a legal public interest requirement. The premise of its variation lies in the highly uncertain concept of public interest. The variation of the interpretation of the public interest implies a change in the intensity of judicial review,which can be divided into three levels from strong to weak. According to the law policy,at present,China should apply the standard of ＂all legal reasons including public interest＂that is moderate in intensity. Taking the Delong case as an example,the applicable approach of the standard can be divided into two steps： the determination of case-by-case public interest by means of value-filling,and the measurement of legal benefits under the framework of proportionality.