行政协议中行政主体义务的优先性考察

The Priority of Administrative Subject Obligations in Administrative Agreements

行政主体在行政协议中的义务包括约定和法定两个层面,但对于何者具有优先性并无明确论断。实践中的冲突处理模式主要包括否定协议效力、变更协议内容、继续履行协议,而模式选择的关键是利益衡量方法的准确适用。在考察行政主体义务优先性时,应当以利益衡量为中心,从行政协议案件中一般技术规范导向个案中义务优先性判断结论,同时,也应明确利益衡量方法仅适用于法律规定具有模糊性、缺少直接的法律依据或者存在其他具有重大争议的问题,还受限于法官的自我克制、衡量依据的限制以及细致论理的要求,当利益衡量无法得出论断时,则要考虑现实因素、政策背景等。

The obligations of administrative organs in administrative agreements include agreed obligations and statutory obligations, but there is no clear judgment on which has priority. The modes of handling conflicts of obligations in practice include denying the validity of the agreement, changing the content of the agreements, and continuing to perform the agreed obligations. Actually, the key to model selection is the accurate application of the method of interest measurement. In the process of judging the priority of obligations, it is necessary to focus on the balance of interests, and draw a conclusion about the priority of obligations in the case from the general technical specification. At the same time, it should be clear that the interest measurement method is only applicable to the ambiguity of legal provisions, the lack of direct legal basis or other major disputes. It is also limited by the judge’s self-restraint, the measurement basis and the requirement of careful reasoning. When the judgment cannot be reached by the interest measurement, realistic factors and policy background should be considered.