行政协议的强制执行路径及其改造
发布时间：2018-12-11 03:44
【摘要】：相对于具体行政行为,行政协议因具协商性而更易被相对人接受,也日益受到行政机关的重视。但是,行政协议的非强制性使得行政机关陷入困境:相对人不履行约定义务的情形下,如何实现行政协议的强制执行?新行政诉讼法将行政协议纠纷纳入受案范围,此举明确了行政机关不履行协议时相对人的救济路径,却未注意到行政协议的双向性,不仅没有解决前述现实困境,反而有加重之趋势。通过对刊登在北大法宝上的38个涉及行政协议强制执行司法审查案例的梳理,可以归纳出实践中所采取的四种不同的强制执行路径,并且在新行政诉讼法实施前后,司法实践中行政协议的强制执行路径都未统一。行政协议性质、行政协议与行政行为关系是行政协议强制执行路径选择的关键。行政协议兼具行政性和契约性,同时通过规范分析和学理分析得出新行政诉讼法中"行政协议"被视为行政行为和私法行为的合成、"行政行为"仍是狭义上的行政行为。在此基础上,实践中的四种路径都存在一定的缺陷。现阶段,在协议中引入自愿接受强制执行作为格式条款较为适宜。在没有阻断相对人救济途径的前提下,既为行政机关申请法院强制执行提供权利依据,又兼顾行政协议的行政性和契约性。同时通过完善非诉强制执行制度设计,在平衡公益与相对方利益的同时,也保障执行目的的有效达成。引入自愿接受强制执行能够适应行政协议类型的多元化,同时,随着市场机制的日益完善,行政协议当事人间的承诺会日益受到尊重,这种以协议约定来解决纠纷的方式也适应了这一趋势。
[Abstract]:Compared with specific administrative acts, administrative agreement is more easily accepted by relative parties because of its consultative nature, and is increasingly attached importance to by administrative organs. However, the non-mandatory administrative agreement makes the administrative organs into a dilemma: how to achieve the enforcement of the administrative agreement when the relative party does not perform the contractual obligations? The new law of administrative procedure brings the dispute of administrative agreement into the scope of accepting the case, which clarifies the relief path of the relative party when the administrative organ fails to perform the agreement, but does not pay attention to the bidirectional nature of the administrative agreement, and not only does it not solve the above-mentioned practical dilemma, On the contrary, there is a tendency of aggravation. By combing 38 cases of judicial review involving the enforcement of administrative agreements published in Peking University's magic treasures, we can conclude four different ways of enforcement in practice, and before and after the implementation of the new Administrative procedure Law. In judicial practice, the enforcement path of administrative agreement is not uniform. The nature of administrative agreement, the relationship between administrative agreement and administrative act is the key to the choice of administrative agreement enforcement path. The administrative agreement is both administrative and contractual. At the same time, through normative analysis and theoretical analysis, it is concluded that "administrative agreement" in the new administrative procedure law is regarded as the combination of administrative act and private law act, and "administrative act" is still a narrow administrative act. On this basis, there are some defects in the four paths in practice. At present, it is more appropriate to introduce voluntary acceptance as a form clause in the agreement. On the premise of not blocking the remedy way of relative party, it not only provides the right basis for administrative organ to apply for court enforcement, but also gives consideration to the administrative and contractual nature of administrative agreement. At the same time, by perfecting the design of non-litigation enforcement system, we can balance the public interest and the relative interests, and also ensure the effective achievement of the purpose of execution. The introduction of voluntary acceptance can adapt to the diversification of the types of administrative agreements. At the same time, as the market mechanism becomes more and more perfect, the commitments between the parties to the administrative agreements will be increasingly respected. This way of settling disputes by agreement also adapts to this trend.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.3
本文编号：2371803
[Abstract]:Compared with specific administrative acts, administrative agreement is more easily accepted by relative parties because of its consultative nature, and is increasingly attached importance to by administrative organs. However, the non-mandatory administrative agreement makes the administrative organs into a dilemma: how to achieve the enforcement of the administrative agreement when the relative party does not perform the contractual obligations? The new law of administrative procedure brings the dispute of administrative agreement into the scope of accepting the case, which clarifies the relief path of the relative party when the administrative organ fails to perform the agreement, but does not pay attention to the bidirectional nature of the administrative agreement, and not only does it not solve the above-mentioned practical dilemma, On the contrary, there is a tendency of aggravation. By combing 38 cases of judicial review involving the enforcement of administrative agreements published in Peking University's magic treasures, we can conclude four different ways of enforcement in practice, and before and after the implementation of the new Administrative procedure Law. In judicial practice, the enforcement path of administrative agreement is not uniform. The nature of administrative agreement, the relationship between administrative agreement and administrative act is the key to the choice of administrative agreement enforcement path. The administrative agreement is both administrative and contractual. At the same time, through normative analysis and theoretical analysis, it is concluded that "administrative agreement" in the new administrative procedure law is regarded as the combination of administrative act and private law act, and "administrative act" is still a narrow administrative act. On this basis, there are some defects in the four paths in practice. At present, it is more appropriate to introduce voluntary acceptance as a form clause in the agreement. On the premise of not blocking the remedy way of relative party, it not only provides the right basis for administrative organ to apply for court enforcement, but also gives consideration to the administrative and contractual nature of administrative agreement. At the same time, by perfecting the design of non-litigation enforcement system, we can balance the public interest and the relative interests, and also ensure the effective achievement of the purpose of execution. The introduction of voluntary acceptance can adapt to the diversification of the types of administrative agreements. At the same time, as the market mechanism becomes more and more perfect, the commitments between the parties to the administrative agreements will be increasingly respected. This way of settling disputes by agreement also adapts to this trend.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.3
【参考文献】
相关期刊论文 前2条
1 官强;;浅析“责令限期拆除”的法律属性[J];中国土地;2012年10期
2 于立深;;通过实务发现和发展行政合同制度[J];当代法学;2008年06期
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