Basic Principles of Administrative Agreement Law: An Introduction to the New Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Agreement Cases Issued on 27 November 2019

Abstract

Administrative contracts contribute to the variety of administration actions. This is true not only for German administrative law but also in the case of China, where administrative contracts have come into vogue as a cross-jurisdictional administrative tool. More generally, the contractual mode of regulating administrative legal relationships also has significance when it comes to the distinction between public law and private law. Among other aspects, the use of administrative contracts allows for a higher degree of legal flexibility, deriving legal inspiration from different legal disciplines. At the same time, contractual administrative action has for quite some time been associated with considerable legal uncertainty, because the appropriate legal recourse to be chosen in the case of administrative contracts was not clarified by law. With the amended Administrative Procedure Law of the People’s Republic of China coming into force in May 2015, the “administrative agreement” (行政协议) was included in the catalogue of accepted complaints. This marked a significant departure for administrative contract law in China. On the one hand, it created more legal certainty for parties filing legal complaints. On the other hand, the amendment provided legal academia with a unique chance to firmly conceptualize administrative contract law. On 1 January 2020, the newly promulgated Provisions of the Supreme People’s Court On Several Issues Concerning the Trial of Administrative Agreement Cases entered into force. With these judicial Provisions, the Supreme People’s Court for the first time created its own procedural law system for administrative agreement cases. In particular these Provisions are intended to provide administrative law practitioners with important guidance on how to handle future cases. When it comes to the specific content and practical benefit of the Provisions, the attitude of legal scholars, however, is extremely divided. In this article, the author examines the legal phenomenon of administrative contracts in Chinese Law with special regard for the new Provisions of the Supreme People’s Court. Apart from this procedural framework, this article discusses especially the Provisions’ theoretical implications. The aim of this article is to show that the new Provisions form an important turning point when it comes to establishing a coherent judicial procedure for the trial of administrative agreement cases. At the same time, the author underlines that open questions remain with regard to the scope of administrative agreements. Finally, issues of substantive administrative contract law, in particular the (in)effectiveness as well as the (unilateral) cancellation of administrative agreements, call for a larger theoretical framework.