论行政优益权视角下的情势变更

On Change of Circumstances of Administrative Agreements in the View of Administrative Advantage Right

行政协议在履行过程中客观情势发生重大变化是行政法上行政优益权制度和民法上的情势变更规则、不可抗力规则适用的基础。由于行政协议中因行政行为导致的履行障碍较之在民事合同中具有特殊性,我国民法中的不可抗力规则与情势变更规则并无直接适用的空间。通过对我国行政协议中情势变更的司法实践进行提炼可发现,我国行政优益权除包含法律所规定的变更、解除、监督权外,内嵌民法上的情势变更规则,并成为行政诉讼结构的补充机制。为了完善我国行政协议中情势变更问题的法律适用,应在严格区分导致协议履行障碍的行政行为类型基础上,秉持行政优益权理论的基本立场,对民法规则予以修正适用,同时立足利益衡平原则建立相对人完整补偿机制。

The significant changes in the objective situation during the performance of administrative agreements are the basis for the application of the administrative advantage right in administrative law and the rules of force majeure as well as change of circumstances in civil law.Since the performance obstacles caused by administrative actions in administrative agreements are more special than those in civil contracts,there is no space for application of force majeure and change of circumstances in civil law.Through the refinement of the judicial practice of changed circumstances in administrative agreements in China,it is obvious that in addition to the rights of change,termination and supervision stipulated by law,administrative advantage right in China is embedded with the rules of change of circumstances in civil law and becomes a supplementary mechanism for the administrative litigation.In order to improve the legal system of administrative agreements in China,we should strictly distinguish the type of administrative actions that leads to obstacles to the performance of the agreement,adhere to the basic position of the theory of administrative advantage right,amend the civil law when applying in administrative agreements,and establish a complete compensation mechanism for the counterparty based on the principle of balancing interests.