Legal information

On December 10, the Supreme People's Court held a press conference and released the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases" (hereinafter referred to as the "Interpretation of Administrative Agreements"). Huang Yongwei, President of the Administrative Tribunal of the Supreme People's Court, and Liang Fengyun, Vice President of the Administrative Tribunal of the Supreme People's Court, attended the press conference. Li Guangyu, spokesperson of the Supreme People's Court, presided over the press conference.

The picture shows the press conference site. Photo by Hou Yusheng

Huang Yongwei introduced the relevant situation of the interpretation of administrative agreements. According to reports, this judicial interpretation is an important judicial interpretation adopted by the Supreme People's Court when the whole country is conscientiously studying and implementing the spirit of the Fourth Plenary Session of the 19th CPC Central Committee. The issuance of this judicial interpretation will have a positive and far-reaching impact on effectively protecting the legitimate rights and interests of the people in administrative agreements, promoting the construction of an honest government based on the rule of law, optimizing the legal business environment, improving the government's administrative governance capabilities, and advancing the administrative trial work of the people's courts.

1. Drafting process of administrative agreement interpretation

Administrative agreement is an inevitable product of the continuous development of the socialist market economy with Chinese characteristics in the new era. It is an important manifestation of the major changes in modern administrative management activities. It is the inevitable result of the public's right to participate in social governance and the right to share public resources. It is a concrete embodiment of the development concepts of modern social service administration and payment administration. The agreements signed by administrative agencies through negotiation with citizens, legal persons or other organizations can, on the one hand, give full play to the decisive role of the market in resource allocation and allow all production factors to compete in an open, fair and just procedure. On the other hand, they can better play the role of the government, fully unleash the potential of social capital, and better achieve administrative management and public service goals. Regarding administrative agreements, the "Opinions of the Central Committee of the Communist Party of China and the State Council on Improving the Property Rights Protection System and Protecting Property Rights in accordance with the Law" highlighted the need to "improve the mechanism for government trustworthiness and fulfillment of promises" and "vigorously promote the construction of a rule of law government and government integrity. Local governments at all levels and relevant departments must strictly fulfill their obligations to the society and administration." The policy commitments made by the counterparty shall be conscientiously fulfilled by various contracts signed with investment entities in accordance with the law in activities such as investment promotion and government-private capital cooperation, and shall not be used to breach the contract due to government change, leadership change, etc. Those who infringe upon legitimate rights and interests due to breach of contract or breach of contract shall bear legal and economic responsibilities." The People's Court's trial of administrative agreement cases will help promote the government's "delegation, regulation and service" reform, help accelerate the transformation of government functions, help innovate administrative management methods, help improve the business environment, help promote a more efficient, fairer and more sustainable development of the socialist market economy, help promote the rule of law and service-oriented government, and help modernize the national governance system and national governance capabilities.

On November 1, 2014, the 11th meeting of the Standing Committee of the 12th National People's Congress passed the "Decision on Amending the Administrative Procedure Law of the People's Republic of China", which came into effect on May 1, 2015. The revised Administrative Litigation Law includes administrative agreements within the scope of administrative litigation and clearly stipulates the adjudication methods for administrative agreement cases. On April 20, 2015, the 1648th meeting of the Judicial Committee of the Supreme People's Court adopted the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Administrative Procedure Law of the People's Republic of China". The judicial interpretation further clarified the relevant content of the trial of administrative agreement cases with six articles. This judicial interpretation has played a positive role in promoting the correct understanding and application of the newly revised Administrative Procedure Law, especially in the correct trial of administrative agreement cases.

However, the above judicial interpretation was formulated to cooperate with the implementation of the revised Administrative Litigation Law and stipulates the main issues involving administrative agreement cases, which is far from meeting the needs of judicial practice. Since administrative agreement is a special administrative management activity, it not only has the general attribute of "administrative nature" of administrative management activities, but also has the special attribute of "protocol nature". Considering that the trial rules of administrative agreement cases are different from the trial rules of general administrative action cases, more detailed and scientific provisions need to be made through judicial interpretations. Starting in 2016, the Supreme People's Court officially started the drafting of judicial interpretations of administrative agreements. During the drafting process, we carried out multi-form and multi-level research in accordance with the provisions of the Administrative Litigation Law and based on the content of the administrative agreement stipulated in the 2015 "Applicable Interpretation". During the drafting process, in order to ensure the quality of the judicial interpretation, we extensively solicited and listened to opinions and suggestions from the Legal Affairs Committee of the National People's Congress, the Ministry of Justice, the Supreme People's Procuratorate, the All-China Lawyers Association, and the Administrative Law Research Society of the China Law Society. In order to ensure that the judicial interpretation is in line with the actual administrative management, we solicited opinions and suggestions from more than 30 ministries and commissions, including the National Development and Reform Commission, the Ministry of Finance, the former Ministry of Land and Resources, the Ministry of Housing and Urban-Rural Development, the National Health and Family Planning Commission, and the Ministry of Education. In order to ensure that judicial interpretations meet the needs of judicial practice, we have carried out more than ten research activities in Zhejiang, Shaanxi, Beijing, Nanjing, Shanghai, Shenyang and other places, and listened to the opinions of various high courts, especially the opinions and suggestions of some front-line judges in the middle and grassroots people's courts; in order to ensure that judicial interpretations comply with the basic theory of administrative agreements, we have repeatedly listened to the opinions and suggestions of civil law academics and administrative law experts and professors. Judging from the scope of soliciting opinions, this judicial interpretation solicitation is the most extensive in the field of administrative trials.

On the basis of full communication and discussion, after nearly three years of extensive and in-depth research, the practical and legal circles have reached an increasing consensus on administrative agreements. On the basis of summarizing, summarizing, researching and analyzing various opinions, a total of 24 drafts of judicial interpretations have been formed. After many revisions, a draft judicial interpretation of the administrative agreement was finally formed and submitted for review, which was discussed and approved by the Judicial Committee of the Supreme People's Court.

2. Basic principles for drafting judicial interpretations of administrative agreements

In the process of drafting judicial interpretations, the following basic principles have always been adhered to:

First, we must always adhere to Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era as our guiding ideology. During the drafting process, we always adhered to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, and always placed the implementation of the spirit of the 18th and 19th National Congress of the Communist Party of China in a prominent position. In particular, we must conscientiously implement the people's status as the subject, practice the fundamental purpose of serving the people wholeheartedly, effectively protect the legitimate rights and interests of the people in administrative agreement cases such as land and housing expropriation and compensation, provide the people with more convenient, more efficient, and better quality judicial relief, and continuously meet the people's growing and diverse judicial needs. At the same time, it is always important to implement the latest provisions of the Administrative Procedure Law, supervise and promote the exercise of administrative rights by administrative agencies in the establishment, performance, modification, and termination of administrative agreements, tighten the "institutional cage" for the standardized operation of administrative power, and vigorously promote the construction of a socialist law-based government.

Second, we always adhere to the important goal of promoting the establishment and improvement of the mechanism for the government to honor its promises. The central government has repeatedly proposed to improve the government’s mechanism for keeping promises and fulfilling promises. The government's trustworthy and promise-honoring mechanism is an important cornerstone of social integrity construction. The judicial interpretation focuses on strengthening the integrity of the government, ensuring that administrative agencies strictly fulfill the policy commitments made to society and administrative counterparts in accordance with the law in accordance with administrative agreements, ensuring that administrative agencies conscientiously perform various contracts signed with investment entities in accordance with the law in activities such as investment promotion and government-private capital cooperation; ensuring that due to the change of government, leadership Those who breach contracts and infringe on legitimate rights and interests due to changes in leadership personnel shall bear legal and economic responsibilities; ensure that if government commitments and contractual agreements need to be changed due to national interests, public interests or other legal reasons, the property losses suffered by enterprises and investors shall be compensated in accordance with the law, and the construction of responsible and honest governments shall be promoted.

Third, we always adhere to the fundamental goal of strengthening property rights protection. Improving the property rights protection system is an intrinsic requirement for upholding and improving the basic socialist economic system and improving the socialist market economy. The central government has clearly stated that it is necessary to "improve the property rights protection system." In accordance with the provisions of the Administrative Litigation Law, the judicial interpretation effectively protects the property rights and legitimate interests of various ownership economies, ensures that all ownership economies use production factors equally in accordance with the law, participates in market competition openly, fairly and justly, and is equally protected by law; strictly grasps the conditions for the government to terminate administrative agreements, and ensures that the government performs its obligations under the agreement in accordance with the law; it clarifies the principles of full compensation for breach of contract by administrative agencies and full compensation for national interests, ensuring that the property rights and interests of parties in administrative agreement cases are effectively protected.

Fourth, we always adhere to the important responsibility of protecting the legitimate rights and interests of private economic and social capital partners. The private economy is an important force in promoting the development of the socialist market economy and an important subject in promoting supply-side structural reform, promoting high-quality development, and building a modern economic system. The judicial interpretation clarifies that state-owned natural resource use rights transfer agreements such as mining rights transfer agreements and government-private capital cooperation agreements that comply with the provisions of this interpretation are administrative agreements, and such agreements are included in the scope of administrative litigation regulations; it clarifies the administrative litigation plaintiff qualifications of market entities participating in competitive activities such as bidding, auctioning, and listing; etc. Through these regulations, we promote the equal protection of property rights, strive to create a fair competitive environment, and effectively protect the legitimate rights and interests of private enterprises and social capital partners.

Fifth, we always adhere to the important mission of optimizing the business environment. Optimizing the business environment is an important institutional condition for continuously liberating and developing social productivity, accelerating the construction of a modern economic system, and promoting high-quality development. The central government attaches great importance to optimizing the business environment. The judicial interpretation adheres to the provisions of the Administrative Litigation Law, combined with the State Council's "Regulations on Optimizing the Business Environment" and other provisions, to conduct a legal review of the administrative acts being sued, conduct a contractual review of the government's breach of contract, supervise the government's honesty and trustworthiness, ensure the smooth advancement of the "decentralization, regulation and service" reform, create a soil that encourages private economy and social capital entrepreneurship and innovation, and cultivate stable and lasting endogenous growth momentum for economic development.

The picture shows Huang Yongwei introducing the relevant information on the interpretation of administrative agreements. Photo by Hou Yusheng

3. Main contents of judicial interpretation of administrative agreements

The full text of the judicial interpretation of administrative agreements contains 29 articles. It mainly stipulates the following aspects:

(1) Clarify the definition and scope of the administrative agreement and effectively protect the legitimate rights and interests of the parties to the administrative agreement

——The connotation of the administrative agreement is clarified. Article 1 of the Judicial Interpretation stipulates that in order to achieve administrative management or public service goals, agreements entered into by administrative agencies with citizens, legal persons or other organizations in consultation with citizens, legal persons or other organizations that contain rights and obligations under administrative law are administrative agreements specified in Article 12, Paragraph 1, Item 11 of the Administrative Litigation Law. According to this provision, an administrative agreement includes four elements: first, the subject element, that is, one party must be an administrative agency; second, the purpose element, that is, it must be to achieve administrative management or public service goals; third, the content element, the content of the agreement must have rights and obligations under administrative law; fourth, the intention element, that is, both parties to the agreement must reach consensus through consultation. By stipulating the connotation of administrative agreements, the difference between administrative agreements and civil contracts is clarified.

——Clearly stipulates the scope of the administrative agreement. The Administrative Litigation Law stipulates that agreements such as government franchise agreements and land and house expropriation compensation agreements fall within the scope of administrative agreements. The judicial interpretation enumerates types of agreements other than the above two types. Mainly include: mining rights transfer agreement and other state-owned natural resource use rights transfer agreements; government-invested affordable housing lease, sale and other agreements; government-social capital cooperation agreements that comply with judicial interpretations, etc. Through the review of the state-owned natural resource use rights transfer agreement, it will effectively solve the past period of chaos in the state-owned natural resources field such as the government's non-performance, non-supervision, and power rent-seeking, and ensure that state-owned assets and other national interests are effectively protected; through the lease, sale and other agreements of government-invested affordable housing , will effectively protect the legitimate rights and interests of urban low-income groups that "houses are for living in"; through the review of the cooperation agreement between the government and social capital, it will be conducive to ensuring the enthusiasm and sense of security of social capital parties to participate in public-private cooperation, and will be conducive to creating a fair competition environment and conducive to the healthy development of the non-public economy.

——Explicitly excludes internal agreements and personnel agreements of administrative agencies. In order to accurately grasp the scope of administrative agreements, the judicial interpretation further stipulates that agreements between administrative agencies for official assistance and other matters, and labor and personnel agreements between administrative agencies and their staff, do not meet the basic elements of administrative agreements and do not fall within the scope of administrative litigation cases accepted by the People's Court.

(2) Clarify the qualifications of litigation subjects under administrative agreements and protect the litigation rights of parties

——The qualifications of the plaintiff in administrative agreement litigation are clarified. Administrative agreements often involve national interests and social public interests, and often involve the realization of administrative management goals. Therefore, in the process of establishing an administrative agreement, the administrative law principles of “openness, fairness, and impartiality” need to be followed. In administrative agreement cases, the conclusion and performance of the administrative agreement not only involve the rights and obligations of the parties to the agreement, but also involve the rights and obligations of interested parties other than the parties to the administrative agreement. The judicial interpretation stipulates the plaintiff qualifications of interested parties in administrative agreements in accordance with the provisions of the Administrative Procedure Law, and is not limited to the principle of relativity in civil contracts. In order to ensure the rights and interests of fair competition rights holders in the conclusion of administrative agreements, the plaintiff qualifications of fair competition rights holders are stipulated; in order to protect the substantive rights and interests of vulnerable groups such as those subject to expropriation, expropriation, and public housing lessees, the plaintiff qualifications of usufruct rights holders and public housing lessees are stipulated.

——The defendant qualifications of administrative agencies are clarified. Based on the positioning of "people suing officials" in administrative agreement litigation, the judicial interpretation stipulates that if a dispute arises due to the conclusion, performance, modification, termination, etc. of an administrative agreement, and a citizen, legal person or other organization files an administrative lawsuit with an administrative agency as the defendant as the plaintiff, the People's Court shall accept the case in accordance with the law. After the People's Court accepts an administrative agreement case, if the defendant files a counterclaim regarding the conclusion, performance, modification, termination, etc. of the agreement, the People's Court will not allow it.

(3) Adhere to the principle of comprehensive jurisdiction over administrative agreement litigation and ensure fair trial of cases

Administrative agreement litigation includes not only administrative action litigation in which administrative agencies exercise administrative rights, but also breach of contract litigation in which administrative agencies fail to perform their contractual obligations in accordance with the law or as agreed. Judicial interpretations have established different trial rules for different litigation claims.

- Clarify the types of administrative agreement litigation. In order to facilitate parties to file administrative agreement lawsuits, the judicial interpretation clarified the specific types of administrative agreement lawsuits in accordance with the provisions of the Administrative Litigation Law, which mainly include: requesting a judgment to revoke the administrative act of the administrative agency exercising preferential rights or confirming that the administrative act is illegal; requesting a judgment that the administrative agency performs its obligations in accordance with the law or in accordance with the administrative agreement. ; Requesting a judgment to confirm the validity of the administrative agreement; requesting a judgment that the administrative agency concludes an administrative agreement in accordance with the law or in accordance with the agreement; requesting a judgment to revoke or terminate the administrative agreement; requesting a judgment to make the administrative agency compensate or compensate; etc., basically including all types of administrative agreements to ensure that the legitimate claims of the parties are fully realized in administrative litigation.

——Clear the burden of proof for different types of litigation. The judicial interpretation stipulates the burden of proof based on the different demands of the parties, combined with the status of the administrative agency in the administrative agreement, and different circumstances. The defendant shall bear the burden of proof for the legality of the acts of having legal powers, performing legal procedures, performing corresponding legal duties, and entering into, performing, changing, and rescinding the administrative agreement. If the plaintiff claims to revoke or terminate the administrative agreement, he shall bear the burden of proof for the reasons for the revocation or termination of the administrative agreement. If a dispute arises as to whether the administrative agreement has been performed, the party with the obligation to perform shall bear the burden of proof.

(4) Adhere to the legality review of administrative agencies’ exercise of preferential rights and ensure the implementation of the principle that administrative agencies “cannot do anything without authorization by law”

——Clearly review the legality of administrative preferential rights activities. The judicial interpretation insists on reviewing the legality of the administrative act being sued, and clearly stipulates that when hearing administrative agreement cases, the People's Court shall conduct a comprehensive legality review based on the provisions of Article 70 of the Administrative Litigation Law on whether the defendant's actions in entering into, performing, changing, and rescinding the administrative agreement have statutory powers, whether they have abused their powers, whether the application of laws and regulations is correct, whether they have complied with legal procedures, whether they are obviously inappropriate, and whether they have performed corresponding statutory duties, and are not subject to the restrictions of the plaintiff's litigation claims.

——Clear the method of judging administrative preferential rights. Judicial interpretations stipulate different adjudication methods for unilateral changes or cancellations of administrative agreements made by administrative agencies to exercise preferential rights: In the process of performing administrative agreements, situations that may seriously damage national interests and social public interests may occur. After the defendant makes administrative actions to change or terminate the agreement, the plaintiff requests to cancel the action. If the people's court finds that the action is legal after trial, the original judgment shall be dismissed. If the defendant's exercise of administrative preferential rights is illegal, the people's court shall order the defendant to revoke or partially revoke the administrative action, and may order the defendant to make new administrative actions; if the defendant's administrative act of exercising administrative preferential rights is illegal, the People's Court may decide to continue to perform the agreement and take remedial measures; if it causes losses to the plaintiff, the people's court shall order the defendant to compensate.

- Clarify compensation for damage caused by administrative agencies exercising their administrative powers in accordance with the law. If legal administrative actions cause damage, the administrative agency shall compensate according to law. The judicial interpretation stipulates that if the defendant or other administrative agencies exercise administrative powers in accordance with the law due to the needs of national interests and social public interests, resulting in the plaintiff being unable to perform, significantly increasing performance costs, or suffering losses, and the plaintiff requests an order for the defendant to provide compensation, the people's court shall support it.

(5) Confirm the validity of administrative agreements in accordance with the law and ensure the balance of national interests, social public interests and private legitimate rights and interests

——Clear the circumstances under which the administrative agreement is invalid. The judicial interpretation combines the characteristics of administrative agreements and the provisions of the Administrative Litigation Law on invalid administrative acts to clarify the circumstances under which administrative agreements are invalid. If there are major and obvious illegal circumstances in an administrative agreement, the People's Court shall confirm the invalidity of the administrative agreement; the People's Court may apply civil legal norms to confirm the invalidity of the administrative agreement; if the reasons for the invalidity of the administrative agreement are eliminated before the conclusion of the first-instance court debate, the People's Court may confirm the validity of the administrative agreement.

——Clear the circumstances under which the validity of the administrative agreement is yet to be determined. The judicial interpretation stipulates that if an administrative agreement that is stipulated by laws and administrative regulations shall take effect after approval by other agencies and other procedures is not approved before the conclusion of the first-instance court debate, the people's court shall determine that the agreement is ineffective; if the administrative agreement stipulates that the defendant has obligations such as performing approval procedures but the defendant fails to perform, and the plaintiff requires the defendant to bear compensation liability, the people's court shall support it.

- Clarify the circumstances under which administrative agreements can be revoked. The judicial interpretation refers to the provisions of civil legal norms such as Contract Law and stipulates the circumstances under which administrative agreements can be revoked. The judicial interpretation stipulates that if the plaintiff believes that there is coercion, fraud, major misunderstanding, obvious unfairness, etc. in the administrative agreement and requests to be revoked, if the people's court finds that the revocable circumstances meet the legal provisions, it may make a judgment to revoke the agreement in accordance with the law.

——Clear the circumstances for the termination of the administrative agreement. The judicial interpretation stipulates that if the plaintiff requests to terminate an administrative agreement, and the people's court determines that the agreement is consistent with the agreed or statutory termination conditions and does not harm the national interests, social public interests, and the legitimate rights and interests of others, it may make a ruling to terminate the agreement.

(6) Adhere to the principle of full compensation in administrative agreements and ensure the realization of the substantive rights and interests of parties to administrative agreements

——The payment judgment of administrative agreement is clarified. In order to ensure the actual rights and interests of the parties to the administrative agreement and respond to the substantive demands of the parties, the judicial interpretation stipulates specific payment judgments. The judicial interpretation stipulates that if the defendant fails to perform the administrative agreement in accordance with the law or as agreed, the people's court may order the defendant to continue to perform in accordance with the law and clarify the specific content of continued performance; if the defendant is unable to perform or continued performance has no practical significance, the people's court may order the defendant to take corresponding remedial measures; if losses are caused to the plaintiff, the people's court shall order the defendant to compensate.

——The liability for breach of contract in the administrative agreement is clarified. If the administrative agency breaches the contract, it shall fully compensate the parties for their actual losses. The judicial interpretation stipulates that if the plaintiff requests compensation in accordance with the agreed liquidated damages clause or deposit clause, the people's court should support it. If the defendant expressly expresses or shows by its own behavior that it will not perform its obligations under the administrative agreement, and the plaintiff files a lawsuit before the expiration of the performance period to request the people's court to assume liability for breach of contract, the people's court shall support the case.

——The litigation type conversion in administrative agreement cases is clarified. Administrative agreement litigation is a public law litigation and has the objective nature of litigation to safeguard national interests and social public interests. The judicial interpretation stipulates that the plaintiff requests the people's court to order it to bear liability for breach of contract on the grounds that the defendant has breached the contract. If the people's court finds that the administrative agreement is invalid after trial, it shall explain it to the plaintiff and confirm the invalidity of the administrative agreement based on the plaintiff's modified litigation request. If the administrative agreement is invalid due to the defendant's behavior, the people's court may order the defendant to bear compensation liability in accordance with the law. If the plaintiff refuses to modify the claim after explanation, the people's court may rule to reject the claim.

(7) Standardize the enforcement of administrative agreement cases to ensure the timely realization of national interests and social public interests

Based on the positioning of "people suing officials" in administrative agreement litigation, if the administrative agency believes that the administrative counterparty fails to perform the administrative agreement in accordance with the law and the contract, it may apply to the People's Court for compulsory enforcement in accordance with the provisions of the Administrative Litigation Law and the Administrative Enforcement Law. Mainly includes two situations:

——Apply to the People's Court for compulsory execution using the decision made by the administrative agency to perform the agreement as the name of execution. If the administrative counterparty of the administrative agreement fails to perform in accordance with the agreement, the administrative agency may make corresponding administrative decisions on the performance of the agreement. If the counterparty does not apply for administrative reconsideration or files an administrative lawsuit and still fails to perform, and the content of the agreement is enforceable, the administrative agency may apply to the people's court for compulsory execution using the administrative decision as a name for execution.

——Apply to the People’s Court for compulsory execution using the decision made by the administrative agency as the name of execution. If laws and administrative regulations stipulate that the administrative agency has the power to supervise the performance of the administrative agreement, the administrative agency may make a decision on the administrative counterparty who fails to perform the agreement. If after the administrative agency makes an administrative decision in accordance with the law, the administrative counterparty does not apply for administrative reconsideration or other administrative litigation and still fails to perform, and the content of the agreement is enforceable, the administrative agency may apply to the People's Court for compulsory execution.

What needs to be made clear is that when hearing administrative agreement cases, the People's Court generally follows the principle of reconsidering the substantive matter and the new procedure. For disputes arising from administrative agreements entered into before May 1, 2015, the then-current laws, administrative regulations, and judicial interpretations shall apply; if there are no provisions in the then-current laws, administrative regulations, and judicial interpretations, the Administrative Litigation Law and this judicial interpretation may apply.

In the next step, the People's Court will further implement the various deployments and requirements of the Party Central Committee, strictly follow the provisions of the Administrative Procedure Law, fairly hear administrative agreement cases, a new type of case, further promote the construction of an honest government based on the rule of law, further promote the modernization of government governance capabilities, further strengthen the protection of property rights, and let the people feel fairness and justice in every administrative case!

*The cases released this time are reference cases and are different from the typical cases released in the past. For reference.

The picture shows the press conference site. Photo by Hou Yusheng

The "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases" were adopted by the 1781st meeting of the Judicial Committee of the Supreme People's Court on November 12, 2019, and are hereby announced and will come into effect on January 1, 2020.

Supreme People's Court

November 27, 2019

Legal Interpretation [2019] No. 17

Supreme People's Court

Provisions on Several Issues Concerning the Trial of Administrative Agreement Cases

(Adopted at the 1781st meeting of the Judicial Committee of the Supreme People's Court on November 12, 2019, and effective from January 1, 2020)

In order to hear administrative agreement cases fairly and promptly in accordance with the law, these regulations are formulated in accordance with the provisions of the Administrative Litigation Law of the People's Republic of China and other laws and in combination with the actual administrative trial work.

Article 1 In order to achieve administrative management or public service goals, an agreement concluded by an administrative agency with citizens, legal persons or other organizations in consultation with citizens, legal persons or other organizations that contains rights and obligations under administrative law shall belong to the administrative agreement specified in Item 11, Article 12, Paragraph 1, of the Administrative Litigation Law.

Article 2 If a citizen, legal person or other organization files an administrative lawsuit regarding the following administrative agreement, the people's court shall accept it in accordance with the law:

(1) Government franchise agreement;

(2) Compensation agreement for expropriation of land, houses, etc.;

(3) Agreement on the transfer of the right to use state-owned natural resources such as mining rights;

(4) Agreements on leasing, sales, etc. of government-invested affordable housing;

(5) A government-private capital cooperation agreement that complies with Article 1 of these Regulations;

(6) Other administrative agreements.

Article 3 Litigation arising from the following agreements entered into by administrative agencies shall not fall within the scope of administrative litigation cases accepted by the People's Court:

(1) Agreements entered into between administrative agencies for official assistance and other matters;

(2) Labor and personnel agreements concluded between administrative agencies and their staff.

Article 4 If a dispute arises over the conclusion, performance, modification, or termination of an administrative agreement, and a citizen, legal person, or other organization serves as the plaintiff and files an administrative lawsuit with an administrative agency as the defendant, the People's Court shall accept the case in accordance with the law.

If a dispute arises due to an administrative agreement entered into by an organization entrusted by an administrative agency, the entrusted administrative agency shall be the defendant.

Article 5 If the following citizens, legal persons or other organizations with an interest in an administrative agreement file an administrative lawsuit, the People's Court shall accept it in accordance with the law:

(1) Citizens, legal persons or other organizations that participate in competitive activities such as bidding, auctioning, listing, etc., and believe that the administrative agency should enter into an administrative agreement with them in accordance with the law but the administrative agency refuses to conclude it, or that the administrative agency enters into an administrative agreement with others and damages its legitimate rights and interests;

(2) Usufructuary rights holders and public housing lessees of expropriated land, houses and other real estate who believe that the expropriation and expropriation compensation agreement damages their legitimate rights and interests;

(3) Other citizens, legal persons or other organizations who believe that the conclusion, performance, modification, termination and other acts of the administrative agreement harm their legitimate rights and interests.

Article 6 After the People's Court accepts an administrative agreement case, if the defendant files a counterclaim regarding the conclusion, performance, modification, termination, etc. of the agreement, the People's Court shall not grant permission.

Article 7 If the parties agree in writing to choose the jurisdiction of the People's Court where the defendant is located, the plaintiff is located, the agreement is performed, the agreement is concluded, the subject matter is located, or other places that are actually connected with the dispute, the People's Court shall follow the agreement, except for violations of hierarchical jurisdiction and exclusive jurisdiction.

Article 8 When a citizen, legal person or other organization files a civil lawsuit with the People's Court, and the effective legal document rules that the case should not be filed or the lawsuit is dismissed on the grounds that the agreement involved in the case is an administrative agreement, and the party concerned files an administrative lawsuit again, the People's Court shall accept the case in accordance with the law.

Article 9 In administrative agreement cases, the “specific litigation claims” specified in Paragraph 3 of Article 49 of the Administrative Litigation Law refer to:

(1) Request a judgment to revoke the administrative action of the administrative agency to change or terminate the administrative agreement, or to confirm that the administrative action is illegal;

(2) Request a judgment that the administrative agency performs its obligations in accordance with the law or in accordance with the administrative agreement;

(3) Request a judgment to confirm the validity of the administrative agreement;

(4) Requesting a judgment from the administrative agency to conclude an administrative agreement in accordance with the law or in accordance with the agreement;

(5) Request a judgment to revoke or terminate the administrative agreement;

(6) Request a judgment from the administrative agency for compensation or compensation;

(7) Other litigation claims related to the conclusion, performance, modification, and termination of administrative agreements.

Article 10 The defendant bears the burden of proof for the legality of its actions such as having legal powers, performing legal procedures, performing corresponding legal duties, and entering into, performing, changing, and rescinding administrative agreements.

If the plaintiff claims to revoke or terminate the administrative agreement, he shall bear the burden of proof for the reasons for the revocation or termination of the administrative agreement.

If a dispute arises over whether the administrative agreement has been performed, the party with the obligation to perform shall bear the burden of proof.

Article 11 When hearing an administrative agreement case, the people's court shall conduct a legality review on whether the defendant's actions in concluding, performing, changing, or rescinding the administrative agreement have legal powers, whether they have abused their powers, whether the application of laws and regulations is correct, whether they have complied with legal procedures, whether they are obviously inappropriate, and whether they have performed corresponding statutory duties.

If the plaintiff believes that the defendant has failed to perform the administrative agreement in accordance with the law or as agreed, the People's Court shall review whether the defendant has corresponding obligations or has performed corresponding obligations in response to its litigation claims.

Article 12 If the administrative agreement contains major and obvious illegal circumstances as stipulated in Article 75 of the Administrative Litigation Law, the People's Court shall confirm that the administrative agreement is invalid.

The People's Court may apply civil legal norms to confirm the invalidity of an administrative agreement.

If the reasons for the invalidity of the administrative agreement are eliminated before the conclusion of the first-instance court debate, the People's Court may confirm the validity of the administrative agreement.

Article 13 If an administrative agreement that is stipulated by laws and administrative regulations shall take effect after approval by other agencies and other procedures, but is not approved before the conclusion of the first-instance court debate, the People's Court shall confirm that the agreement has not taken effect.

If the administrative agreement stipulates that the defendant shall perform the approval procedures and other obligations but the defendant fails to perform, and the plaintiff requires the defendant to bear compensation liability, the people's court shall support it.

Article 14 If the plaintiff believes that there is coercion, fraud, major misunderstanding, obvious unfairness, etc. in the administrative agreement and requests to be revoked, and the people's court deems that the administrative agreement meets the legal requirements for revocation, it may make a judgment to revoke the agreement in accordance with the law.

Article 15 After the administrative agreement is invalid, revoked or determined to be ineffective, the people's court shall make a judgment to return the property acquired by the parties as a result of the administrative agreement; if it cannot be returned, it shall make a judgment to compensate at a discount.

If an administrative agreement is confirmed to be invalid or revoked due to the defendant's fault, the defendant may be ordered to take remedial measures at the same time; if losses are caused to the plaintiff, the people's court shall order the defendant to compensate.

Article 16 During the performance of an administrative agreement, situations may occur that seriously damage national interests and social public interests. After the defendant makes an administrative act to change or terminate the agreement, the plaintiff requests to revoke the act. If the people's court finds that the act is legal after trial, it will rule to reject the plaintiff's claim; if it causes losses to the plaintiff, it will order the defendant to compensate.

If the defendant's administrative act of changing or rescinding the administrative agreement falls under the circumstances specified in Article 70 of the Administrative Litigation Law, the people's court shall revoke or partially revoke the judgment and may order the defendant to make new administrative acts.

If the defendant's administrative act of changing or rescinding the administrative agreement is illegal, the People's Court may, in accordance with Article 78 of the Administrative Litigation Law, order the defendant to continue to perform the agreement and take remedial measures; if it causes losses to the plaintiff, the people's court shall order the defendant to compensate.

Article 17 If the plaintiff requests to terminate an administrative agreement, and the people's court determines that the termination is in compliance with the agreed or statutory conditions and does not harm the national interests, social public interests and the legitimate rights and interests of others, it may make a ruling to terminate the agreement.

Article 18 If a party exercises the right to perform a defense in accordance with the provisions of civil legal norms, the people's court shall support it.

Article 19 If the defendant fails to perform the administrative agreement in accordance with the law or as agreed, the People's Court may, in accordance with the provisions of Article 78 of the Administrative Litigation Law and in conjunction with the plaintiff's claims, rule that the defendant continues to perform and specify the specific content of continued performance; if the defendant is unable to perform or continued performance has no practical significance, the People's Court may order the defendant to take corresponding remedial measures; if losses are caused to the plaintiff, the people's court shall order the defendant to compensate.

If the plaintiff demands compensation in accordance with the agreed liquidated damages clause or deposit clause, the people's court shall support it.

Article 20 If the defendant expressly expresses or shows by its own behavior that it will not perform the administrative agreement, and the plaintiff files a lawsuit before the expiration of the performance period, requesting the People's Court to assume liability for breach of contract, the People's Court shall support it.

Article 21 If the defendant or other administrative agencies exercise their administrative powers in accordance with the law due to the needs of national interests or social public interests, resulting in the plaintiff being unable to perform, significantly increasing performance costs, or suffering losses, and the plaintiff requests an order for the defendant to compensate, the people's court shall support it.

Article 22 The plaintiff requests the people's court to order it to bear liability for breach of contract on the grounds that the defendant has breached the contract. If the people's court finds that the administrative agreement is invalid after trial, it shall explain it to the plaintiff and confirm the invalidity of the administrative agreement based on the plaintiff's modified litigation request. If the administrative agreement is invalid due to the defendant's behavior, the people's court may rule that the defendant shall bear compensation liability in accordance with the law. If the plaintiff refuses to change the claim after explanation, the people's court may rule to reject the claim.

Article 23 When hearing administrative agreement cases, the People's Court may conduct mediation in accordance with the law.

When the People's Court conducts mediation, it shall follow the principles of voluntariness and legality, and shall not damage national interests, social public interests, or the legitimate rights and interests of others.

Article 24 If a citizen, legal person or other organization fails to perform its obligations in accordance with the administrative agreement, or fails to perform after being urged, the administrative agency may make a written decision requiring it to perform the agreement. If a citizen, legal person or other organization fails to apply for administrative reconsideration or file an administrative lawsuit within the statutory time limit after receiving the written decision, and still fails to perform it, and the content of the agreement is enforceable, the administrative agency may apply to the People's Court for compulsory execution.

Laws and administrative regulations stipulate that administrative agencies have the power to supervise the performance of administrative agreements. If a citizen, legal person or other organization fails to perform its obligations as agreed, or fails to perform after being urged, the administrative agency may make a decision in accordance with the law. If a citizen, legal person or other organization fails to apply for administrative review or file an administrative lawsuit within the statutory period after receiving the decision, and still fails to perform the agreement, and the content of the agreement is enforceable, the administrative agency may apply to the People's Court for compulsory execution.

Article 25 If a citizen, legal person or other organization files a lawsuit against an administrative agency for failing to perform an administrative agreement in accordance with the law or as agreed, the statute of limitations shall be determined with reference to civil legal norms; if a citizen, legal person or other organization files a lawsuit against an administrative agency for changing or canceling an administrative agreement or other administrative acts, the time limit for filing a lawsuit shall be determined in accordance with the Administrative Litigation Law and its judicial interpretations.

Article 26 If an administrative agreement stipulates an arbitration clause, the People's Court shall confirm that the clause is invalid, unless otherwise provided for by laws, administrative regulations or international treaties concluded or acceded to by my country.

Article 27 When hearing administrative agreement cases, the People's Court shall apply the provisions of the Administrative Procedure Law; if there are no provisions in the Administrative Procedure Law, the provisions of the Civil Procedure Law shall apply by reference.

When hearing administrative agreement cases, the people's courts may refer to the relevant provisions of the applicable civil laws and regulations on civil contracts.

Article 28 If a dispute arises over an administrative agreement entered into after May 1, 2015, the Administrative Litigation Law and these regulations shall apply.

If a dispute arises over an administrative agreement entered into before May 1, 2015, the laws, administrative regulations and judicial interpretations at that time shall apply.

Article 29 These regulations will come into effect on January 1, 2020. If the judicial interpretation previously issued by the Supreme People's Court is inconsistent with these regulations, these regulations shall apply.