相对人不履行行政协议的解决路径

The Solutions to the Counterparty's Failure to Perform the Administrative Agreement

行政协议对当事双方具有受法律保护的拘束力。当相对人不履行协议时,因协议的高权性及行政诉讼的单向性,行政机关无法寻求诉讼解决;又因协议的对等性,行政机关也不能强制执行或申请法院强制执行。司法解释确定的转介强制执行,容许行政机关另行作出要求协议相对人履行协议的书面决定,进而申请法院强制执行。因协议关系的对等性及“两种行为并行禁止原则”,转介强制执行的正当性并不充分。根据功能及基础关系,行政协议可以分为等级关系协议和对等关系协议。等级关系协议旨在通过对具体行政行为的替代来便宜地实现行政目的,相对人的不履行将使该目的落空,行政机关应回转至原有的具体行政行为模式。对等关系协议旨在通过公私合作共同履行行政职责,当相对人不履行协议时,应根据不履约是否影响协议目的分别加以处理。

The administrative agreement is legally binding upon both parties.When the counterparty fails to perform such agreement,the administrative organ cannot deal with such failure through litigation due to the hoheit nature of the administrative agreement and the unidirectionality of the administrative litigation,nor can it enforce such agreement or apply to the court for such enforcement due to the equality between parties to the agreement.The judicial interpretation establishes a referral for enforcement by allowing an administrative organ to make a performance decision and thus giving it the right to apply to the court for enforcement.However,due to the equivalence in the agreement and the principle of prohibiting the concurrence of two acts,the referral for enforcement is not sufficiently legitimate.According to their functions and their foundational relations,administrative agreements are divided into an agreement with hierarchical relationship and an agreement with equivalent relationship.The agreement with hierarchical relationship is designed to achieve the administrative purpose in a convenient way by replacing or supplementing a specific administrative act.If the counterparty’s failure to perform the agreement leads to the frustration of such purpose,the administrative organ shall resort to the original administrative act.An agreement with equivalent relationship is designed to jointly perform the administrative obligations through the public-private cooperation.When the counterparty fails to perform such agreement,different solutions will be adopted depending on whether such failure leads to the frustration of purpose.