行政协议的判断标准——以“亚鹏公司案”为分析样本的展开

The Criteria for Judgment of Administrative Contract:Analyzing Ya Peng Company Case

行政诉讼法修改之后,无论在理论上,还是实践上,行政契约都得到了肯认。但是,除了行政诉讼法上明确列举的政府特许经营协议、土地房屋征收补偿协议之外,如何判断一个合同属于行政协议,依然存在争论。要证成行政协议,"主体说"、"目的说"(公共利益)都显得苍白无力,形式意义大于实质意义。上述标准都必须结合并最终落实到"具有行政法上权利义务内容"这一个重要标准上。其在合同之中的具体体现,以往学者多拘束于行政优益权理论,而忽视了隐含在行政契约之中的行政机关对未来权力行使的事先处分与约定。这决定了行政协议与民事合同在解决纠纷上的不同理路,成为判断行政协议的根本性标准。

After the amendment of Administrative Litigation Law, both in theory and in practice, administrative contract has been confirmed and accepted. However, there are still disputes on the judgment standards of administrative contract, apart from the government franchise agreements and land and housing expropriation compensation agreements explicitly listed in the Administrative Litigation Law. The concept of administrative contract could not easily accepted only by emphasis on that it is signed by government or its purpose is to realize public interest. Only the content of contract contains administrative right or duty, then administrative contract could be obviously distinguished from civil contract. As to the interpretation of the criteria of administrative duty or right, in the past, scholars concentrated mainly on administrative privileges, but neglected the prior disposition of administrative organs on the exercise of future public power which implied in the administrative contract.