论行政协议的司法审查

On the Judicial Review of Administrative Contracts

当前有关行政协议的学术争议,主要集中在公法与私法交织的界面上的合同形态是否属于行政协议,这类合同形态明显间杂着公法关系与私法关系,不宜做完全公法意义上的解读,而应当引入行政契约上的"混合契约"概念。对于有关纠纷,原则上应当通过行政诉讼附带民事诉讼,区分纠纷属性,循着不同救济路径分别处理。

At present, the academic disputes about administrative contracts mainly focus on whether the specific contract formed on the interface of public law and private law belongs to administrative contracts. This kind of contract involves the relationship of both public law and private law, so it is not suitable to interpret in the sense of complete public law. It is necessary to introduce the concept of ‘mixed contract’ which is of course a kind of administrative contract. In principle, in order to solve the relevant disputes involving mixed contract, we should distinguish the nature of disputes and deal with them according to different relief paths through administrative litigation with civil litigation.