可撤销行政协议的价值与认定

司法解释创设了可撤销行政协议制度,其既能处理行政协议无效以外的其他效力瑕疵,又能保障当事人的自主权,有利于行政协议效力体系的完善。可撤销行政协议的认定可遵循如下标准:行政协议中缔约行政机关不具有法定职权的,应以无法定职权为由撤销;程序违法超过轻微程度应以程序违法为由撤销;不具备缔结前提或内容违反效力性强制性规范的,应以适用法律法规错误为由撤销;缺乏必备条款的协议不宜撤销;行政机关无正当理由课予相对人对待给付义务或对待给付义务无助于行政任务履行的,应以滥用职权为由撤销;双方给付义务失衡或无正当合理关联的,应以明显不当为由撤销。撤销行政协议会给国家利益、社会公共利益造成重大损害的,不予撤销。

Value and Determination of Revocable Administrative Agreement

A judicial interpretation creates the system of revocable administrative agreements, which can not only deal with other effectiveness flaws than the invalidity of administrative agreements, but also guarantee the parties’ autonomy, and perfect the whole system of validity for administrative agreements as well. The recognition of revocable administrative agreement adheres to the following standards: if the contracting administrative organ does not have corresponding legal authority, the agreement shall be revoked lack of legal authority;if the procedural illegality is more than slight, the agreement shall be revoked on the basis of procedural illegality;if it does not exist the premise of conclusion or the content violates the mandatory norms of validity, the agreement shall be revoked on the basis of the error of applicable laws and regulations, while the agreement without necessary provisions shall not be revoked;if the administrative organ has no justifiable reason to burden the administrative counterpart or his obligation under the contract is not conducive to the performance of administrative tasks, the agreement should be revoked according to abuse of power;if two parties’ obligations to pay are unbalanced or have no legitimate connection, the agreement should be revoked on ground of obvious inappropriateness. If the cancellation will cause significant damages to the national interests or social public interests, the agreement shall not be cancelled.