浅谈行政协议的范围

On the Scope of Administrative Agreement

自上世纪末以来,行政协议的概念和范围界定就一直成为国学学者讨论的热点,并且在实践中也萌发出了行政协议的种子。与此同时纵观西方各国和我国台湾地区,对此形成了许多学说来认定行政协议,主要包括主体标准、目的标准、法律关系标准以及行政优益权标准等等。但是我国在法律框架内并未明确什么是行政协议,直到2015年,最高人民法院出台司法解释定义了行政协议,并将其纳入行政诉讼的范围。2019,最高人民法院在此基础上又进一步界定了行政协议。但是宽泛的行政协议范围势必会造成行政权力的滥用以及与民事合同的区分困难等一系列问题,最终损害的是法治的统一。虽然国内也有学者尝试进一步明确行政协议的范围,并区别于民事合同,但是在现行法律和司法解释框架之内显得还不够全面,因此有必要结合域外经验和我国实践对此进行探讨。

Since the end of the last century, the concept and scope of administrative agreement has been a hot topic for scholars of Sinology, and the seeds of administrative agreement have sprouted in practice. At the same time, throughout the western countries and Taiwan Region of China, many theories have been formed to identify the administrative agreement, the legal relationship standard and the administrative priority right standard. However, in China, in the legal framework and in order to clarify what is the administrative agreement, until 2015, the Supreme People's Court issued a judicial interpretation to define the administrative agreement and put it into the scope of administrative litigation. In 2019, the Supreme People's Court further defines the administrative agreement on this basis. However, the wide scope of administrative agreement will inevitably lead to a series of problems, such as the abuse of administrative power and the difficulty of distinguishing from civil contract, which will ultimately damage the unity of the rule of law. Al-though some domestic scholars try to further clarify the scope of administrative agreement and distinguish it from civil contract, it is not comprehensive within the framework of current law and judicial interpretation. Therefore, it is necessary to explore it in combination with foreign expe-rience and China’s practice.