行政协议司法审查若干问题研究

A Study on the Judicial Review of Administrative Agreements

行政协议具有行政性和契约性的双重属性,这使其在司法审查中一直存在分歧。关于行政协议的判定难下定论,宜将司法实践中形成的关于行政协议判定的五项要素进行梳理,明确各项要素在行政协议判定中的地位及作用;同时,以公权力是否发挥了效果作为本质性判定标准。行政协议司法审查的受案范围可以由正、反两方面的标准共同组成,一方面,其受案范围不应当限于“政府特许经营协议、土地房屋征收补偿协议”,而应当及于所有行政协议;另一方面,内部行政协议等几类协议不纳入受案范围。对行政协议进行司法审查时,应当对其进行合法性审查与合约性审查。

Administrative agreement has the dual attributes of administration and contract, which makes it different in judicial review. As for the determination of administrative agreement, it is necessary to sort out the five elements formed in judicial practice to clarify the status and role of each element in the determination of administrative agreement;at the same time, taking whether the public power has played an effect should be taken as the essential criterion, the scope of accepting cases of judicial review of administrative agreements can be composed of positive and negative standards. On the one hand, the scope of accepting cases should not be limited to “government franchise agreement, land and housing acquisition compensation agreement”, but all administrative agreements;on the other hand, several types of agreements, such as internal administrative agreements, are not included in the scope of accepting cases. In the judicial review of administrative agreements, the legality and contractual nature should be examined.