摘要
《行政协议规定》第14条首次规定相对人可提起协议撤销之诉,肯认了行政协议撤销权的存在。基于“控权”的实质构造逻辑,目前该权利仅围绕规制行政权力组建,忽视了行政机关也是平等契约的一方主体,应予补正。碍于行政协议撤销权属既介于“行政撤销权”,又介于“私法合同撤销权”的中间矛盾体,需从契约自由与依法行政间的张力探析其双向构造合理性。当相对人不法行为触发协议可撤销时,碍于诉讼结构限制,行政机关不能通过民事或行政反向诉讼行使撤销;又因撤销权不同于以“严重损害国家利益、社会公共利益”结果要件为核心的行政优益权,归入其中的理由也不充分。对此补正困境,应针对协议类型分设解决方案:在相对人参与渐趋于零的“执行型行政协议”中,应回归单方行政行为撤销权思路,意思表示到达即产生撤销效果;在相对人实质参与的“合作型行政协议”中,行政机关的协议撤销权则应转介第三方监督机关行使,并须对现有可撤销情形评价要素予以修正。
Article 14 of the Administrative Contract Provisions for the first time provides that the counterpart may file a lawsuit revoking the contract, which confirms the existence of the right of revocation in the administrative contract. Based on the logic of the substantive construction of "power controlling", the right is only formed around the regulation of administrative power currently, which ignores that the administrative organ is also as an equal party in contract, and should be remedied. Because the right ofrevocation is an intermediate contradictory concept between "the right of administrative revocation" and "the right of private contract revocation", the tension between the freedom of contract and administration by law needs to be analyzed from its two-way construction rationality. When the illegal acts of the counterpart cause that the contract can be revoked, due to the restriction of the litigation structure, the administration cannot exercise the revocation through civil or administrative reverse litigation;and because the right of revocation is different from the administrative superior profit power which is based on the result element of "serious damage to the national or social public interest", there is no sufficient reason to be included in it. To remedy this dilemma, the solution should be set up based on the different types of contract: in the "executive administrative contract" where the participation of the counterpart tends to be fade, it should return to the idea of unilateral right of administrative revocation, the revocation goes into effect when the meaning reaches another counterpart;in the "cooperative administrative contract" where the counterpart is substantially involved in, the administration’s right of revocation should be referred to the third-party supervisory organ, and the existing evaluation elements of revocable situations should be amended.
出处
《荆楚法学》
2023年第1期90-102,共13页
Jingchu Law Review
关键词
行政协议
撤销权
权利构造
契约自由
Administrative Contract
Right of Revocation
Right Structure
Freedom of Contract
