论行政协议非诉执行制度的优化

行政协议约定内容的设定没有受到立法程序中关于公众参与程序和立法机关备案审查程序的控制,也往往没有协议内容公开和相关程序的要求。相较于行政决定(由行政协议转化而来的除外)作为非诉执行依据的情形,行政协议作为非诉执行依据时更难以解决行政法上的代理人问题,即行政协议中行政主体一方更难以全面地代表公共利益。从现行行政协议非诉执行制度的执行名义、申请程序、审查程序和标准来看,应进一步加强对行政主体一方应代表的公共利益的全面考量和保护,并提出如何完善相关制度的建议。

On the Optimization of Court's Enforcement of Administrative Agreement Without Litigation

The content of administrative agreement is set without the control of legislative procedures including the public participation and registration for legislative review,and there is often no requirement about the disclosure of the agreement and the associated procedural control.Unlike administrative decision serving as the legal ground for court enforcement without litigation,the use of administrative agreement as the legal ground will make it more difficult to solve the agent problem in the field of administrative law.That means,it will be more difficult for the administrative body to represent the public interest comprehensively.This paper analyzes the legal ground,application procedures,review standards and procedures for the enforcement of administrative agreement without court litigation;and argues that it is necessary to further consider the public interests which the administrative body should represent and protect them.Finally,this paper puts forward some suggestions on how to make the institutional arrangements better.