行政协议无效的认定

Determination of the Invalidity of the Administrative Agreement

摘要: 依据最高人民法院于2019年颁布的《关于审理行政协议案件若干问题的规定》中的第12条，确立了判断行政协议无效的标准。这一规定明确指出，行政协议的效力判定既可参照《行政诉讼法》第75条以确认其无效状态，亦能依据民事法律规范来评估其效力，从而全面地确立了行政协议效力的判断机制。既要从行政行为本身的合法性考虑，也要从契约本身的合意性考虑。但在认定行政协议无效时如何平衡其合法性与合意性的关系，实现认定标准的统一，是司法实践中亟待解决的问题。行政协议是一种混合了公法和私法的契约，因此在法律和行政原则以及契约严守原则的基础上，在法律上寻找更科学的判断标准，在法律和契约的基础上，对其无效的认定也要兼顾两个方面，在依法律行政原则与契约严守原则、法律优位、法安定性、信赖保护原则等因素的基础上，寻找更加科学的判断标准。

Abstract: According to Article 12 of the Provisions on Several Issues in the Trial of Administrative Agreement Cases promulgated by the Supreme People’s Court in 2019, the criteria for judging the invalidity of administrative agreements are established. This provision clearly states that the validity of the administrative agreement can be determined not only by referring to Article 75 of the Administrative Procedure Law to confirm its invalidity, but also evaluate its effectiveness according to civil legal norms, thus comprehensively establishing a judgement mechanism for the validity of administrative agreements. It should be considered not only from the legitimacy of the administrative act itself, but also from the consensus of the contract itself. However, how to balance the relationship between legality and consensus when determining that an administrative agreement is invalid, and to achieve the unification of recognition standards, is an urgent problem to be solved in judicial practice. Administrative agreement is a kind of contract that mixes public law and private law. Therefore, on the basis of the principles of law and administration and the principle of strict compliance with the contract, a more scientific judgement standard should be found in law. On the basis of the law and contract, the determination of its invalidity should also take into account two aspects, in accordance with the principle of administrative law and the principle of strict compliance with the contract. Based on legal advantages, legal stability, trust protection principles and other factors, more scientific judgement standards should be found.