The contract we usually refer to is a civil and commercial contract, which is very familiar to everyone. Many people find administrative contracts relatively unfamiliar (in order to be consistent with the concepts explicitly stipulated in the law, hereinafter collectively referred to as "administrative contracts" as "administrative agreements," both of which are actually one thing).

Recently, we have undertaken a major and complex administrative agreement dispute case (hereinafter referred to as this case) arising from the performance and dissolution of government franchise agreements, which involves a large number of difficult legal application issues. We will take the case as a starting point and use a series of special articles to explain the relevant legal issues of the administrative agreement case in detail, and review and summarize the experience and gains and losses in the process of handling the case, with a view to providing useful reference and reference for lawyers and clients.

This article is the first in a series of articles that will focus on the following: a brief introduction to the case, the concept and common types of administrative agreements, and how to identify administrative agreements and civil contracts. For the purpose of protecting privacy, some parties and place names in this article use pseudonyms. Limited by time and level, readers are welcome to criticize and correct.

1、 Basic facts of the case

（1） Founded in December 2012, Nuandong Company is a wholly-owned subsidiary of Nuanxin Company and a project company operating heating business in Dagong County, Heze City, Shandong Province.

（2） On October 1, 2013, the Dagong County Government signed a "Heating Franchise Agreement" with Warmheart Company, in which both parties agreed that the Dagong County Government would grant the heating operation right in the urban area of Dagong County to Warmheart Company, and Warmheart Company would have the right to collect heating supply fees, as well as infrastructure supporting fees and service fees from users, with the assistance of the county government.

（3） On January 30, 2015, the Dagong County Central Heating Leading Group issued a Notice to the Warm Winter Company, requiring that the supporting fees for heating infrastructure in all counties of the city be uniformly collected by the government.

（4） On April 15, 2016, the Dagong County Government issued a "Notice" to Warmheart Company, requesting the cancellation of the "Heating Franchise Agreement" signed by both parties, and the county government to withdraw the heating franchise rights. Warmheart Company disagreed with this and replied to the Dagong County Government on April 21st of the same year. The main content of the reply was that it disagreed with the cancellation, because there were no agreed or statutory conditions for the cancellation of the franchise agreement.

（5） On May 20, 2016, the Dagong County Government Office issued a "Notice" stating that the government has established a special team to conduct asset clearance and capital verification for the Warm Winter Company, requiring relevant units not to sign heating agreements with the Warm Heart Company and the Warm Winter Company, and not to pay supporting fees to the Warm Winter Company.

（6） On August 2, 2016, Warm Company was established. On September 8, 2016, the Dagong County Government signed the "Dagong County City Centralized Heating Trusteeship and Operation Agreement" with Warm Company, handing over the heating operation right to Warm Company.

（7） On August 21, 2018, Warmheart Company filed a civil lawsuit with the Heze Intermediate People's Court, requesting a decree granting permission to terminate the franchise agreement, and requesting the Dagong County Government to compensate Warmheart Company for the loss of 310 million yuan caused by its unilateral breach of contract. Due to the huge amount of the subject matter, the Heze Intermediate People's Court ruled to transfer it to the Shandong Higher People's Court for jurisdiction.

（8） On May 17, 2019, the Shandong Provincial High People's Court made a ruling rejecting the lawsuit filed by Warm Heart Company, informing Warm Heart Company to file another administrative lawsuit.

（9） On November 8, 2019, Warm Heart Company filed an administrative lawsuit with the Heze Intermediate People's Court, requesting the cancellation of the administrative actions of the defendant Dagong County Government in the form of a "Notice" on April 15, 2016 to terminate the heating franchise agreement and withdraw the plaintiff's heating franchise rights, on the grounds that the county government should have held a hearing but did not hold it.

（10） On October 16, 2020, the Heze Intermediate People's Court issued an administrative ruling of first instance, ruling to dismiss the lawsuit of Warmheart Company, informing the plaintiff that a separate administrative compensation lawsuit could be filed. The reason is that the plaintiff's prosecution has exceeded the statutory prosecution deadline.

（11） On February 18, 2021, the High People's Court of Shandong Province issued an administrative ruling of second instance, ruling to reject the appeal and uphold the original ruling. It also believed that the plaintiff had exceeded the statutory prosecution deadline, but could file a separate administrative compensation lawsuit.

（12） On September 7, 2021, Warmheart Company filed a separate administrative compensation lawsuit with the Heze Intermediate People's Court, with the amount of 310 million yuan. After the court filed the case, we intervened in the agency work of the case.

（13） Before the hearing of the administrative compensation case, we applied to the Heze Intermediate People's Court to add a lawsuit request: "Request to confirm according to law that the administrative act of the defendant unilaterally terminating the franchise agreement is invalid.".

（14） On March 10, 2022, the Heze Intermediate People's Court ruled in the first instance to refute the lawsuit request of Warm Heart Company, and stated in the "Our Court's Opinion" section that "If both parties fail to reach a consensus, Warm Heart Company and Warm Winter Company may file a separate administrative compensation lawsuit in accordance with the law.".

(Note: The above are the basic facts of the case. If necessary, other facts and details will be supplemented and explained in due course in the future.)

2、 What is an administrative agreement?

（1） Legislative Evolution of Administrative Agreements

On November 1, 2014, the 11th Meeting of the Standing Committee of the Twelfth National People's Congress adopted the Decision on Amending the Administrative Procedure Law of the People's Republic of China, which will come into force as of May 1, 2015. The revised "Administrative Procedure Law" includes administrative agreements into the scope of accepting cases in administrative litigation, and clearly stipulates the way of judging administrative agreement cases.

On April 22, 2015, the Supreme People's Court issued the "Interpretation on Several Issues Concerning the Application of the Administrative Procedure Law of the People's Republic of China" (Fa Shi [2015] No. 9), which was implemented on May 1, 2015 and expired on February 8, 2018. Article 11 stipulates that in order to achieve public interests or administrative objectives, administrative organs, within the scope of their statutory responsibilities, cooperate with citizens An agreement concluded through consultation by a legal person or other organization that contains rights and obligations under administrative law belongs to the administrative agreement specified in Item 11, Paragraph 1, Article 12 of the Administrative Procedure Law. "If a citizen, legal person, or other organization files an administrative lawsuit regarding the following administrative agreements, the people's court shall accept them according to law: (1) government franchise agreements;"; （2） Compensation agreement for land and housing expropriation; （3） Other administrative agreements.

On November 27, 2019, the Supreme People's Court issued the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases" (Fa Shi [2019] No. 17), hereinafter referred to as the "Judicial Interpretation of Administrative Agreements", which came into force on January 1, 2020, and established basic norms and basis for the people's court to hear administrative agreement disputes.

（2） The Concept and Characteristics of Administrative Agreements

According to Article 1 of the Judicial Interpretation of Administrative Agreements, administrative agreements refer to agreements with rights and obligations in administrative law concluded by administrative organs through consultation with citizens, legal persons, or other organizations in order to achieve administrative management or public service goals.

Administrative agreements have both administrative and contractual attributes. The administrative attribute is reflected in the flexible manner in which the administrative organ exercises management authority, performs statutory duties, achieves administrative management or public service objectives, and enjoys administrative priority over the agreement based on the administrative authority. The contractual attributes are embodied in the voluntary, consensual, and relative aspects of the agreement.
In terms of voluntariness, an agreement is the result of a consensus between the parties, and the agreed content should comply with the expression of intent of both parties. In principle, neither party can force the other party to accept its expression of intent against its will.

In terms of consensus, the aforementioned legal spirit should also be followed. The consensus reached between the parties to the agreement should be respected and cannot be arbitrarily changed. However, the difference between administrative agreements and civil contracts is that the administrative nature of administrative agreements takes precedence over the agreement nature, and the legality takes precedence over the contractual nature. Administrative agreements should have priority in applying the principle of legality. When the contractual nature and legality of an administrative agreement conflict, that is, the agreed content does not comply with legal provisions, the people's court should not recognize the effectiveness of the content. "If the legal provisions on which the administrative agreement is based have made specific and clear requirements, and both parties to the agreement should comply without any room for negotiation, and if the parties to the agreement request changes in accordance with the legal provisions, the people's court may support [1] in accordance with the law.". Based on the legal characteristics of administrative agreements, if the law stipulates that the conclusion of administrative agreements is the legal responsibility of administrative organs, administrative organs cannot refuse to conclude them according to law. "If the counterpart of the agreement requests to conclude an administrative agreement according to law, the people's court shall support it.". One of the differences between administrative agreements and ordinary civil contracts is that the counterpart to the agreement can request the conclusion of an administrative agreement according to law, which can more directly and comprehensively protect the legitimate rights and interests of the counterpart to the agreement. [2]

In terms of relativity, there is consistency between the relativity of administrative agreements and civil contracts, that is, the rights and obligations of contracts extend to and bind the opposite parties to the agreement and cannot be arbitrarily breached. However, the principle of privity of contract can also be broken through in cases where there are clear provisions in the law. In principle, the stakeholder system of traditional administrative acts can also be applied to administrative agreement litigation. Compared to civil contracts, there are relatively more legal situations in which administrative agreements break through the principle of contract relativity. For example, Article 5 of the Judicial Interpretation of Administrative Agreements stipulates the scope of interested parties with the qualification of plaintiff [3]. "Where an administrative organ performs its statutory duties by concluding an administrative agreement, it shall strictly comply with the requirements of legality, ascertain whether it has corresponding legal duties towards the counterpart to the agreement, and agree on the rights and obligations between the two parties in accordance with the law.". "If an administrative organ concludes an administrative agreement without ascertaining the relevant facts, thereby causing damage to the legitimate rights and interests of other parties other than the counterpart to the agreement, and an interested party requests the cancellation or partial cancellation of the administrative agreement, the people's court shall support it according to law.". In this way, it can not only solve administrative agreement disputes in a package, reduce litigation costs for the parties, but also avoid duplicate payments and prevent improper loss of state-owned assets. [4]

（3） Essential Elements of Administrative Agreements

According to the above provisions, the mainstream view holds that administrative agreements include four essential elements: one is the main element, that is, one party is the administrative organ, and the other party is the administrative counterpart; The second is the purpose element, that is, to achieve the objectives of administrative management or public service; The third is the content element, that is, the content of the agreement has rights and obligations in administrative law; The fourth is the element of intention, that is, the parties to the agreement reach consensus through consultation.

On this basis, the identification of administrative agreements can be carried out according to the following two standards: one is the formal standard, that is, whether it occurs through consultation between the performing administrative organ and the administrative counterpart; The second is the substantive standard, that is, the subject matter and content of the agreement have rights and obligations in administrative law, which depend on whether to exercise administrative powers and perform administrative duties; Whether to achieve administrative objectives and public services; Whether the administrative organ has the advantageous right.

（4） Common types of administrative agreements

According to Article 2 of the Judicial Interpretation of Administrative Agreements, common types of administrative agreements include:

1. Government Franchise Agreement. Government franchising refers to the selection of operators through fair competition mechanisms such as bidding, and the authorization and licensing of them to operate a certain public product or provide a certain public service within a certain period and geographical range in a specific public utility field in accordance with relevant laws and regulations. Government franchising widely exists in urban water supply, gas supply, heat supply, sewage treatment, garbage treatment, urban public transportation, and other fields. Government franchising generally adopts the form of agreement to stipulate the rights and obligations of both parties, typically BOT (Build Operate Transfer). BOT is a type of infrastructure construction method, which generally refers to the contractor or sponsor obtaining construction concessions for certain infrastructure from the administrative authority through a contract, becoming a project franchisor, and financing and constructing a certain infrastructure by private franchisees themselves, "And operate the facility for a period of time to obtain profits, and upon the expiration of the concession, transfer the facility to a government department or other public institution for free.". The "Heating Franchise Agreement" signed between the Dagong County Government and Warmheart Company in this case belongs to BOT.

2. Compensation agreement for land and housing expropriation. China's "Urban Real Estate Management Law" and "Land Management Law" have principled provisions on the acquisition and requisition of land and houses [5], According to Article 25 of the Regulations on the Acquisition and Compensation of Houses on State-owned Land "The housing expropriation department and the person to be expropriated shall, in accordance with the provisions of these Regulations, enter into a compensation agreement on matters such as the method of compensation, the amount of compensation and the payment period, the location and area used for the property rights exchange of the house, relocation fees, temporary resettlement fees or revolving houses, losses from production or business suspension, the relocation period, transition methods, and transition periods. If one party fails to perform its obligations under the compensation agreement after the conclusion of the compensation agreement, the other party shall "A lawsuit may be brought in accordance with the law." It should be noted that in addition to land and houses, the objects of expropriation under this provision also include other real and movable properties [6].

3. Agreement on the transfer of the right to use state-owned natural resources such as mining rights. Mining rights transfer agreements mainly include exploration rights and mining rights transfer agreements. In addition, the most typical of state-owned natural resource use rights transfer agreements is state-owned land use rights transfer agreements. Such agreements are signed by administrative authorities on behalf of the state to transfer the right to use state-owned natural resources such as mining rights to an administrative counterpart within a certain period of time, who pays the transfer fee and develops and utilizes state-owned natural resources in accordance with the provisions of the agreement, in line with the essence and constituent elements of the administrative agreement.

4. Agreements on leasing, buying, and selling government-invested indemnificatory housing. Both public rental housing and new types of guaranteed housing are housing that is paid or subsidized by the state through finance, land, etc., and then owned by the state or developers, and operated by property companies. Their purpose is to protect the housing rights of some people, belonging to the scope of national welfare administration, with a strong public service nature, and their related agreements belong to administrative agreements.

5. Cooperation agreement between the government and social capital in accordance with Article 1 of these regulations. This type of agreement, also known as PPP agreements or public-private partnership agreements, is an agreement signed by administrative agencies to use social capital for investment and cooperation in related infrastructure, and is aimed at achieving relevant administrative objectives. Among the elements of administrative agreements, the core is the purpose element and the content element. In public-private partnership agreements, although there is the introduction of social capital from private entities, this is only a means of cooperation, not a purpose of cooperation. The real purpose is not to achieve the profitability of private entities, but to achieve the provision of public services to citizens through the profitable behavior of private entities. In public-private partnership agreements, most well-known contracts are embodied in government concession agreements, which are only a statutory special form and type of public-private partnership agreements [7].

6. Other administrative agreements that conform to the essence and constituent elements of administrative agreements, namely, anonymous administrative agreements.

（5） Administrative agreement disputes fall within the scope of administrative litigation

Article 12 of the Administrative Procedure Law stipulates that the people's court shall accept the following lawsuits filed by citizens, legal persons, or other organizations:... (11) Those who believe that the administrative organ fails to perform in accordance with the law, fails to perform in accordance with the agreement, or illegally changes, or rescinds agreements such as government franchise agreements, land and housing expropriation compensation agreements. Article 4 of the Judicial Interpretation of Administrative Agreements stipulates that if a dispute arises due to the conclusion, performance, modification, or termination of an administrative agreement, and a citizen, legal person, or other organization is the plaintiff, and an administrative organ is the defendant, the people's court shall accept the administrative lawsuit according to law. Accordingly, administrative agreement cases fall within the scope of administrative litigation by the people's courts.

（6） The heating franchise agreement in this case belongs to an administrative agreement, which should be subject to administrative litigation. Warmheart Company has filed a civil lawsuit and has improper strategies

In this case, the heating franchise agreement signed between the Dagong County Government and Warmheart Company fully meets the above elements of the administrative agreement, which is an administrative agreement. Therefore, after Warmheart Company filed a civil lawsuit, the Shandong High Court ruled to dismiss the plaintiff Warmheart Company's lawsuit on the grounds that the dispute involved in the case falls within the scope of administrative litigation by the People's Court.
We believe that the decision of the Shandong High Court is correct, but if we consider the relevant provisions of the newly promulgated "Judicial Interpretation of Administrative Agreements" after the decision is made, the reasons and reasoning behind it are not so simple. Because: The franchise agreement for this case was signed on October 1, 2013. Regarding whether administrative agreements signed before May 1, 2015 fall within the scope of administrative litigation, Article 28 of the Judicial Interpretation of Administrative Agreements stipulates that "If disputes arise from administrative agreements signed after May 1, 2015, the Administrative Procedure Law and these Provisions shall apply. If disputes arise from administrative agreements signed before May 1, 2015, the laws, administrative regulations, and judicial interpretations of the time shall apply."

The so-called "legal provisions at that time" objectively do not have corresponding clear provisions, but rather come from the relevant judicial replies of the Supreme People's Court, such as the "Interpretation on the Applicable Law Issues in the Trial of Cases Involving the Use Right of State-owned Land Contract Disputes" (Fa Shi [2005] No. 5), and the "Interpretation on the Applicable Law Issues in the Trial of Cases Involving Rural Land Contract Disputes" (Fa Shi [2005] No. 6), The contractual disputes over the use of state-owned land and rural land are defined as civil disputes.

As for the dispute over the government franchise agreement in this case, whether it should be handled as a civil case or an administrative case, there was no clear provision at the time of the agreement's conclusion (October 1, 2013).

In the book "Understanding and Application of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases", think "At that time, the law did not provide for matters related to administrative agreement disputes, nor did it provide for reference. The people's court could not forcibly apply inappropriate legal provisions, nor could it fail to handle them on the grounds that there was no legal basis. Given its essential nature as an administrative agreement case, the legal relationship of the dispute is not different from that after the new law, the only difference is the time when the agreement was concluded. When there is no legal basis to apply "The parties do not have corresponding expectations regarding the application of the law, so choosing to apply the same provisions as the administrative agreement concluded after the new law is the most reasonable choice and is also accepted by the parties.". [8]”

The above opinions in the Supreme Court's understanding and application further confirm the correctness of the Shandong High Court's judgment viewpoint.

（7） An Analysis of Warmheart Company's Choice of Civil Litigation Relief Path

Article 46 of the Administrative Procedure Law stipulates that a citizen, legal person, or other organization that directly brings a lawsuit to a people's court shall file the lawsuit within six months from the date when they knew or should have known of the administrative act. In other words, the prosecution period for administrative litigation is six months. Administrative agreement belongs to a special kind of administrative act, and the signing time of the administrative agreement is equivalent to the making time of the traditional administrative act.

In this case, the Dagong County Government issued a "Notice" to Warmheart Company requesting the dissolution of the franchise agreement on April 15, 2016. By the time of filing a lawsuit (i.e., the first civil lawsuit) on August 21, 2018, objectively speaking, it was clear that the prosecution period for administrative litigation had expired. Perhaps it was because the lawyer hired by Warmheart Company realized this overdue legal obstacle at that time that it decided not to initiate administrative litigation, but instead to initiate civil litigation.

The civil lawsuit filed by Warmheart Company took a total of 9 months in the first and second trials, which objectively further consolidated the state that the prosecution period had expired, and the result was very unfavorable to the plaintiff Warmheart Company, which amounted to an increase in trial and error costs.

During the first civil prosecution of this case (August 21, 2018) until the Shandong High Court made a second instance civil judgment (May 17, 2019), the "Judicial Interpretation of Administrative Agreements" had not yet been issued, although lawyers at the time were not aware of the provisions of Article 28, paragraph 2, of the "Judicial Interpretation of Administrative Agreements". However, if lawyers conduct comprehensive and in-depth research, they can also reach the conclusion that administrative litigation relief channels should be selected. Because the "Notice of the Supreme People's Court on Regulating the Causes of Administrative Cases" (Fa Fa (2004) No. 2, which expires on January 1, 2021), issued on January 14, 2004, includes administrative contracts as an administrative act in the scope of administrative litigation, the "Administrative Litigation Law", which came into effect on May 1, 2015, explicitly includes administrative agreement disputes in the scope of administrative litigation.

Therefore, lawyers must maintain sufficient sensitivity to the issue of administrative agreements, conduct comprehensive and in-depth research, and select the best litigation strategy and plan for the parties, otherwise they will go a long way towards being wronged.

3、 The Significance and Methods of Distinguishing Administrative Agreements from Civil and Commercial Contracts

As this case reveals, the different nature of the same contract determines the differences in the channels of relief and the applicable rules of law. Compared to administrative agreements, civil and commercial contracts have many common points, such as that the parties should be honest and trustworthy, equal and voluntary, and once a contract is signed, the parties must strictly abide by it; However, there are significant differences between civil and commercial contracts and administrative agreements. Civil and commercial entities sign contracts for their own interests, while administrative agencies sign agreements to achieve public interests or administrative management objectives. In addition, when objective circumstances such as the need for public interests or adjustments in legal policies make it impossible or necessary to modify the performance of administrative agreements occur, administrative entities may exercise certain administrative priority rights, Civil and commercial contracts have equal status and do not enjoy preferential rights.

To determine whether it belongs to an administrative agreement, a review should be conducted based on the elements of the administrative agreement. In judicial practice, such as investment promotion agreements, asset demolition compensation contracts, land acquisition and storage compensation agreements, and administrative settlement agreements, generally belong to administrative agreements in nature. It should be noted that these non legal anonymous agreements cannot be judged solely by the name of the agreement, but should be identified based on the elements of the administrative agreement to determine whether they belong to an administrative agreement.

Next, we will combine common disputes over the nature of agreements to enlighten everyone on how to identify administrative agreements:

（1） A contract, usually not an administrative agreement, that is not signed or undertaken by an administrative agency to perform its obligations

In the "(2020) Xiang Xing Zhong No. 294" case, the Higher People's Court of Hunan Province, "The focus of the dispute in the second instance of this case is whether the signing of the Enterprise Restructuring Asset Transfer Agreement between Zhonglong Company and Liujian Company is an administrative agreement." The "Enterprise Restructuring Asset Transfer Agreement" involved in this case For the voluntary signing of the agreement between Zhonglong Company and the Sixth Construction Company, Zhuhui District Construction Bureau, as the government competent department of the Sixth Construction Company, witnessed the signing of the agreement. Although the agreement stipulates that the government departments in charge of the Sixth Construction Company and the government under their jurisdiction should actively create conditions to win the support of the municipal government, so that the Sixth Construction Company can enjoy the preferential policies for enterprise restructuring as much as possible. However, the Hengyang Municipal Government and the Zhuhui District Government are not signatories to this agreement, and have not entrusted the Sixth Construction Company to sign this agreement, nor have they made any administrative commitment to the performance of the agreement. "Therefore, this agreement is not an administrative agreement, and Zhonglong's application for performance of this agreement does not fall within the scope of administrative litigation by the people's court."

In the "(2020) Yuexing Shen No. 62" case, the Guangdong Provincial High People's Court held that "this case is a dispute over the administrative agreement on compensation for urban construction demolition and resettlement, and the focus of the dispute is whether the administrative litigation filed by the applicant in this case meets the legal prosecution conditions. In this case, on February 10, 2018, the applicant and the third party in the original trial, Aoyuan Company, signed the involved" Urban Renewal, Demolition, Compensation and Resettlement Contract for Lian'an Old Village, Xiangzhou District, Zhuhai City " The Xiangzhou District Renewal Bureau did not intervene in the signing and performance of the compensation and resettlement contract for the sued demolition. "The parties to the compensation and resettlement contract involved in the case are equal subjects and do not fall within the scope of the administrative agreement. Therefore, the original courts of first and second instance ruled to reject the lawsuit against the applicant, and after examination by this court, there was no impropriety."

In the "(2019) Liao Xing Zhong No. 1319" case, the Higher People's Court of Liaoning Province held that: "Regarding the nature of the Land Subcontracting Contract involved in the case, Article 12, Paragraph 1, Item 11 of the Administrative Procedure Law of the People's Republic of China stipulates that..." Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases " Article 1 stipulates that. According to this, the main body of a party to an administrative agreement should be the administrative organ exercising administrative management and service functions or the organization entrusted by it. "In this case, the subjects involved in the Land Subcontracting Contract are Zhang Jishun and Dicheng Company, which are neither administrative subjects nor organizations entrusted by administrative organs. Therefore, the Land Subcontracting Contract is not an administrative agreement, and the lawsuit brought by Zhang Jishun against the Land Subcontracting Contract is not within the scope of administrative litigation."

（2） If the contract lacks rights and obligations in administrative law, it is generally not an administrative agreement

The Supreme People's Court held in the case of "(2020) SFHS No. 8358" that "in this case, the Agreement and Transfer Agreement signed between the Xuecheng District Government and the Shandong Provincial Prison Administration Bureau" ", is a transfer agreement signed by both parties on the basis of equal consultation on the subject change of state-owned enterprise management rights and the performance agreement of the transfer agreement. It does not have the nature of performing administrative functions and powers, nor is it an agreement signed by administrative organs to achieve administrative objectives and provide public services, nor does it contain rights and obligations under administrative law.". Therefore, the "Agreement" and "Transfer Agreement" are not administrative agreements. Meng Xiangmin's filing of an administrative lawsuit does not fall within the scope of administrative litigation. 1、 "The ruling of the second instance dismissed the complaint without impropriety."
In the case of "(2020) Jiminshen No. 2864", the Higher People's Court of Jilin Province held that: "Regarding the issue of Weishahe Town Government asserting that the nature of the contract involved in the case is an administrative agreement." Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases " Article 1 stipulates that. "The purpose of signing the contract involved in the case by the Weishahe Town Government is to perform administrative functions, but the contract content does not have rights and obligations under administrative law, only rights and obligations within the civil scope. Therefore, the court of first instance determined that the contract involved in the case is not an administrative agreement and is not improper."

（3） "If an administrative organ fails to exercise social and public management functions or promote public service objectives, it is generally not an administrative agreement."

In the "(2020) Sumin Shen No. 6859" case, the Jiangsu Provincial High People's Court held that: "First, regarding the issue of whether the investment agreement entered into by both parties is an administrative agreement or a civil agreement. In this case, although the investment agreement entered into between Haiyong Town Government and Feiqian Company has stipulated the investment scale, registered capital, project completion time, sales revenue, etc. of Feiqian Company, it is also agreed that after the establishment of Feiqian Company, it will lease 5.5 mu of land use rights in Haiyong Town, and handle the rent standard and rent payment." Detailed and specific agreements have been made on the terms of the lease, the priority of lease, the disposal of the attachments invested by Feiqian Company after the expiration of the lease, and the delivery standards for the leased land. After the establishment of Feiqian Company, on April 2, 2010, a land lease agreement was signed with the East West Market Brigade under the jurisdiction of Haiyong Town Government, which clearly and specifically stipulated the rent standard, rent payment method, lease term, priority lease right, disposal of the subsidiary invested by Feiqian Company upon expiration, and liability for breach of contract for the 5.5 mu land leased by Feiqian Company. From the main content of the two agreements, it is not that the Haiyong Town Government entered into a contract with Gu Congwei or Feiqian Company for the purpose of achieving administrative management or public service objectives, but rather that the Haiyong Town Government, as an equal civil subject, entered into a contract with Feiqian Company on matters such as land leasing. "Therefore, the court of second instance determined that the two parties were in a civil contractual relationship between equal civil subjects, and there was no impropriety."

In the "(2020) Jin Xing Shen No. 36" case, the Higher People's Court of Shanxi Province held that: "The focus of the dispute in this case is whether the agreement on withdrawing from the city and entering the park, relocation and restructuring involved in the case belongs to the administrative agreement, and whether the lawsuit brought by the retrial applicant in this case belongs to the scope of administrative litigation by the people's court. Article 1 of the" Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreements "stipulates that. Article 11, Paragraph 1, of the "Law of the People's Republic of China on Enterprise State-owned Assets" stipulates that Article 7, Paragraph 2, of the "Interim Regulations on the Supervision and Administration of Enterprise State-owned Assets" stipulates that the state-owned assets supervision and administration institutions shall not exercise the social and public management functions of the government, and other government agencies and departments shall not perform the duties of investors in enterprise state-owned assets. According to the provisions of the above laws and regulations, the statutory responsibility of the state-owned assets supervision and management institution is to perform the responsibilities of the investor on behalf of the people's government at the corresponding level towards the state-owned investment enterprise, but not to exercise the social and public management functions of the government. In this case, Yangquan SASAC and Chengmu Gonggong signed two agreements with Yangquan Valve Co., Ltd. and Yangquan Water Pump Factory Co., Ltd., respectively, to withdraw from the city and enter the park, and to relocate and restructure. The three parties to each agreement have clarified their respective rights and obligations on the basis of equality, mutual benefit, and full negotiation, and have agreed on the liability for breach of contract. The agreement shows that the Yangquan SASAC only performs the legal responsibilities of the investor on behalf of the people's government at the corresponding level for the state funded enterprises, and does not exercise the government's social and public management responsibilities. "Therefore, the agreement involved in the case does not belong to the administrative agreement, and the lawsuit filed by Chengmu Gonggong Company does not belong to the scope of administrative litigation in the people's court."
References and Notes:

[1] "The Second Batch of Typical Cases of Administrative Agreement Litigation Issued by the Supreme People's Court": "The Case of Wang and Chen suing the Liangzhu Sub district Office of Yuhang District, Hangzhou City, Zhejiang Province for Changing the Compensation and Resettlement Agreement for Demolition".
[2] "The Second Batch of Typical Administrative Agreement Litigation Cases Issued by the Supreme People's Court": "III. Wang Mou v. Huaining County Bureau of Land and Resources, Anhui Province, Land Management Administrative Transfer Case.".

[3] Article 5 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases: If any of the following citizens, legal persons, or other organizations have an interest in an administrative agreement file an administrative lawsuit, the people's court shall accept it in accordance with the law: (1) Participating in competitive activities such as bidding, auction, or listing, and believing that the administrative organ should enter into an administrative agreement with it in accordance with the law, but the administrative organ refuses to enter into an administrative agreement, "Or a citizen, legal person, or other organization that believes that the conclusion of an administrative agreement between an administrative organ and another person impairs its lawful rights and interests;"; （2） The usufructuary owner or public house lessee of the expropriated land, houses, and other real estate that believes that the expropriation and requisition compensation agreement damages their legitimate rights and interests; （3） Other citizens, legal persons, or other organizations that believe that the conclusion, performance, modification, or termination of administrative agreements harm their legitimate rights and interests.

[4] "The Supreme People's Court Issued the Second Batch of Typical Cases of Administrative Agreement Litigation": "IV. A Fenggang County Industry and Trade Co., Ltd. sued the People's Government of Fenggang County, Guizhou Province for requesting the cancellation of the compensation and resettlement agreement.".

[5] Article 6 and Article 20 of the Urban Real Estate Management Law, and Article 2, Paragraph 4, and Article 47 of the Land Management Law.

[6] "Interpretation and Application of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases", compiled by the Administrative Tribunal of the Supreme People's Court, p. 42.

[7] "Interpretation and Application of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases", compiled by the Administrative Tribunal of the Supreme People's Court, pp. 48-51.

[8] "Interpretation and Application of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases", compiled by the Administrative Tribunal of the Supreme People's Court, p. 390.