The review of the effectiveness of administrative agreements is the key to the trial of administrative agreement cases. For an effective administrative agreement, both parties need to assume responsibilities such as continuing to perform, taking remedial measures, and compensating for breach of contract; "For an invalid administrative agreement, the counterpart may apply to the court to declare it invalid.". How to determine the effectiveness of administrative agreements?Can the effectiveness judgment rules of civil contracts be applied?In addition to being valid and invalid, are there any other states of validity of administrative agreements, such as revocable or pending?This article will answer these questions in combination with judicial practice. 

1、 Overview of the effectiveness of administrative agreements

According to Article 9 of the Judicial Interpretation of Administrative Agreements, in administrative agreement cases, the plaintiff may request a judgment to confirm the effectiveness of the administrative agreement. According to the second paragraph of Article 27, when hearing administrative agreement cases, the people's court may refer to the relevant provisions of applicable civil legal norms on civil contracts. 

Article 15, paragraph 2, of the repealed "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Administrative Procedure Law of the People's Republic of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" stipulates that if the plaintiff requests confirmation of the invalidity of the agreement, and the reasons are established, the judgment confirms the invalidity of the agreement, and makes a settlement in accordance with relevant laws and regulations such as the Contract Law. 

The above provisions reflect that the legal application rules for administrative agreements are "administrative law+quasi civil law model". According to this rule, the general provisions on contracts in civil law can be applied to administrative agreements, such as provisions on expression of will, capacity for conduct, invalidity, etc., unless otherwise specifically provided by law. As long as the provisions on contracts in the civil law do not violate the nature of administrative agreements, they can be applied. Accordingly, regarding the validity status of administrative agreements, we should respect the relevant provisions of civil legal norms. Administrative agreements should also have four statuses: invalid, valid, pending effectiveness, and revocable. 

It should also be noted that an invalid administrative agreement does not necessarily require the parties to apply for confirmation. The court should first make an independent judgment on the effectiveness of the administrative agreement, which is not premised on whether the parties make a request [1]. 

2、 Invalid administrative agreement

（1） To determine the invalidity of an administrative agreement, both the provisions on invalidity of administrative acts and the rules on invalidity of contracts in civil legal norms apply

Article 12 of the Judicial Interpretation of Administrative Agreements stipulates that if there are significant and obvious violations of the administrative agreement as stipulated in Article 75 of the Administrative Procedure 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 court debate of first instance, the people's court may confirm that the administrative agreement is valid. 

Regarding the relationship between the two types of norms, some scholars believe that "significant and clearly illegal" can be compatible with the provisions of the Contract Law due to its abstract and flexible expression providing a high degree of inclusiveness. Among them, harming the national, collective, and social public interests should fall under the specific circumstances of "significant and obviously illegal" specified in Article 75 of the Administrative Procedure Law. Public and private law rules do not have to make either choice in determining invalid administrative agreements, but rather achieve accommodation between public and private law principles by maximizing the intersection of public and private law rules. The various causes mentioned in the Contract Law that may lead to the invalidity of a civil contract can be considered as "significant and obviously illegal" specific situations, not only as grounds for determining the invalidity of a civil contract, but also as grounds for determining the invalidity of an administrative agreement [2]. 

（2） Administrative Legal Norms and Relevant Judicial Practices for Determining the Invalidity of Administrative Agreements

1. Administrative legal norms

Illegality is the starting point of invalidity. Article 75 of the Administrative Procedure Law stipulates that if an administrative act involves significant and obvious illegal circumstances such as the subject of implementation not possessing the qualification of an administrative subject or lacking evidence, and the plaintiff applies for confirmation of the invalidity of the administrative act, the people's court shall make a judgment confirming the invalidity. 

What is "significant and clearly illegal"?According to Article 99 of the current Interpretation of the Administrative Procedure Law, any of the following circumstances shall be classified as "significant and obviously illegal" as stipulated in Article 75 of the Administrative Procedure Law: (1) the subject of the implementation of an administrative act does not have the qualification of an administrative subject; （2） There is no legal basis for administrative actions that derogate from rights or increase obligations; （3） The content of an administrative act is objectively impossible to implement; （4） Other significant and obviously illegal situations. 

For the determination of the standard of "significant and apparent illegality", it is necessary to comprehensively consider other legal norms or basic legal principles to determine whether a specific administrative act has reached a significant and apparent illegality. "Significant" refers to the inherent significant illegality of administrative acts, which means that the illegal flaws of administrative acts have reached a point where even the principle of trust protection cannot explain them. "Obvious" refers to the apparent illegality of an administrative act, which means that the flaws in the illegality of the administrative act are obvious and can be easily judged based on the rationality and experience of ordinary people [3]. Other scholars believe that the "significant" flaws in administrative acts may point to essential elements such as, but not limited to, the importance of the legal norms violated, and the seriousness of the consequences of the damage caused. The "obviousness" of defects is based on the judgment of ordinary or average rational people [4]. 

In the (2018) Supreme Court's ruling No. 550, the Supreme Court held that "the common standard for determining a significant and obvious violation of the law is that its violation has been significant and obvious to the extent that any reasonable person can judge it, and therefore it has no judicial power. Without confirmation by a court or other authority, ordinary people can disobey it based on their own judgment." Similarly, in the (2019) Zhexing Shen No. 202 retrial ruling, the Zhejiang High Court held that "the determination of invalid administrative acts should be strictly distinguished from ordinary administrative violations, so that any reasonable person can directly judge and do not need to pass a trial to confirm 'significant and obvious violations'.". 

General situations where violation of administrative legal norms leads to invalidity of administrative agreements

(1) The administrative organ's lack of authority or overstepping of authority may lead to the invalidity of the administrative agreement

"The legality and effectiveness of administrative agreements first requires that the subject be qualified, and generally requires that the administrative organ have corresponding administrative powers. It is necessary to" administer according to law ", and entering into agreements without powers or beyond powers belongs to the category of non contracting capacity.". An administrative agreement concluded by an administrative organ without or beyond its authority shall be deemed invalid. For example: 

① The Administration for Industry and Commerce has signed a PPP agreement involving highway construction, but the agreement is invalid because it has no corresponding authority or responsibility to sign such an agreement. 

② The land management authority explicitly stipulated by law is vested in the natural resources department, and although the development zone management committee is also an administrative organ, it does not have the statutory authority to implement land transfer. "If no subsequent ratification is obtained and the management committee goes beyond the scope of its business, the contract will be considered null and void [5].". Similarly, the Supreme Court held in its ruling (2020) No. 3832, "The transferor with the right to sign the transfer contract can only be Qingyuan Municipal Bureau of Land and Resources. Neither the Henghe Sub District Office nor the Qingcheng District Government have the contracting entity qualification and administrative authority to sign the transfer contract for the use right of state-owned construction land. Therefore, the Agreement" "The agreement on the transfer of the right to use state-owned land shall be deemed to be inherently impossible and in violation of the mandatory provisions of the Land Management Law, and shall be null and void." 

③ Only people's governments at or above the county level and their authorized departments and units are eligible to sign government franchise agreements. Without authorization or ratification, franchise agreements signed by certain town governments and enterprises are invalid in practice [6]. 

Generally speaking, it should be the administrative organ that signs the administrative agreement, and non administrative organs cannot sign the administrative agreement [7]. However, in judicial practice, administrative agreements signed by non administrative organs are not necessarily invalid. For example, in some cases, the court believes that the following special subjects can enter into administrative agreements with counterparts. For example: 

① The collection office has the subject qualification to sign administrative agreements under certain conditions. The Jiangxi High Court held in its (2020) Ganxingshen No. 298 ruling that, "As the district government has specified in the expropriation decision document that the district housing expropriation and compensation office is the expropriation department for the housing involved in the project, and is responsible for signing the housing expropriation and compensation agreement for the project involved. In addition, the three-pronged plan of the housing expropriation and compensation office clearly states that it has the responsibility to conduct work in accordance with the housing expropriation and compensation and resettlement plan, and sign the expropriation, compensation and resettlement agreement on a household by household basis." 。"Therefore, the Housing Acquisition Compensation Office has the main qualification to sign administrative agreements, and has the qualification to be the defendant in administrative agreement litigation." In the (2020) Ganxingshen No. 179 ruling, it was stated that "the respondent of this case, Longnan City Land and Housing Acquisition Office, is a department established by the Longnan City People's Government according to law with the ability to independently assume legal responsibility, and has been entrusted with the function of signing an acquisition compensation agreement with the respondent. In the case of the reconstruction project of the shantytowns in the high-speed railway new area (core area), the Longnan City People's Government"The Implementation Plan for Land and Housing Acquisition and Compensation for the Shanty Town Reconstruction Project of Longnan High Speed Rail New Area (Core Area) further clarifies that the Longnan Land and Housing Acquisition Office is the acquisition department of the project houses involved, responsible for the housing acquisition and compensation work of the project, and is qualified to sign a housing resettlement compensation agreement with the expropriated person." 

② The project headquarters has the main qualification to sign administrative agreements. In the (2021) Xiang Xing Zhong No. 140 ruling, the Hunan High Court held that"The Guyang River Reservoir Project Headquarters is a temporary deliberative and coordinating organization established by the Guzhang County Party Committee and the county government, and does not have the ability to bear legal responsibility. It is not a qualified defendant in this case. Its signing and performance of the agreement should be deemed as being entrusted by the Guzhang County government. The court of first instance should continue to hear this case with the entrusting party, the Guzhang County government, as the defendant, and directly participate in the signing of the agreement." "The headquarters of the Guyang River Reservoir Project agreed in the case may be listed as a third person." In the (2019) GXZ No. 617 judgment, the Jiangxi High Court held that "the Regulations on Housing Expropriation and Compensation on State-owned Land" It is determined that the municipal and county level people's governments are the subject of expropriation and compensation, and it is stipulated that the object of expropriation can reach an agreement on expropriation and compensation with the subject of expropriation... As the project headquarters is a temporary organization established by the Yushan County People's Government, Liang E should file a lawsuit on the compensation agreement, and the Yushan County People's Government should be the defendant. In this case, the project headquarters of the expropriation implementation unit and Liang E entered into a expropriation and compensation agreement through negotiation, and the Yushan County People's Government, which established the temporary institution, shall bear legal responsibility for the consequences of their actions. This does not fall within the circumstances where the administrative actions specified in Article 75 of the Administrative Procedure Law of the People's Republic of China are invalid. "Liang E's appeal that the signing body is not qualified and the expropriation compensation agreement is invalid cannot be established." 

③ The management committee of a development zone or industrial park may have the main qualification to sign administrative agreements. In the (2020) QHS362 ruling, the Guizhou High Court held that because the respondent's Guizhou Panbei Economic Development Zone Management Committee actually has the function of administrative management of the land within its jurisdiction, it has the legal authority to sign and perform the agreements involved in the case during the implementation of land acquisition. In the judgment (2020) No. 686 issued by the Shaanxi High Court, it is believed that "the Fengjing Management Committee that signed the agreement involved in the case is an agency of the government of the Huayi District, and in accordance with the Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China" According to Article 21, Fengjing Management Committee does not have the qualification of an administrative entity, and its signing of the agreement involved in the case is deemed to be entrusted by the government of Fengyi District. Fengjing Management Committee is entrusted by the government of Fengyi District to sign the agreement involved in the case, which does not violate legal provisions. "Zhang Haihai and others believe that the management committee's conclusion of the agreement involved in the case is invalid due to its lack of administrative subject qualification, and this court does not support this view." 

④ Village committees and other special organizations are qualified to sign compensation agreements for demolition and resettlement. In the (2020) EHS No. 719 ruling, the Hubei High Court held that under special circumstances, the resettlement compensation agreement signed between the villagers committee and the villagers is legal and valid. The Hunan High Court held in the (2020) Xiang Xing Shen No. 541 ruling that "the third party market center in the original trial of this case was the sued compensation agreement signed under the entrustment of the housing expropriation department Shaodong Housing and Construction Bureau, so the retrial reason for Yang Ling's application that the signing subject of the sued compensation agreement does not have the qualification of administrative subject cannot be established"; In the (2020) Xiang Xing Shen No. 1012 ruling, it is believed that "the county land acquisition and demolition office, as a transactional work unit in land acquisition work, accepts the entrustment of the county resource bureau, and has the right to sign an acquisition compensation agreement with the expropriated person. The implementation subject is legal and can serve as a defendant." 

(2) The administrative act as the main content of the administrative agreement is invalid

When signing an administrative agreement, it is usually agreed that the administrative organ shall enjoy corresponding rights and undertake corresponding obligations, and the provisions on its obligations often require the administrative organ to take certain administrative actions in accordance with the provisions of the law. If the administrative actions agreed upon in the agreement are invalid, the administrative agreement shall be null and void. There used to be an agreement by administrative authorities in investment promotion contracts that the use right of state-owned land should be explicitly granted to the counterpart, which was illegal. According to the relevant provisions of the Land Management Law, the transfer of the use right of state-owned land should go through a bidding, auction, and listing process, without which the transfer should not be allowed, otherwise the transfer contract may be invalid due to illegal administrative acts [8]. 

The most typical is the land use agreement [9] (the premise discussed in this article is that the land use agreement or investment promotion contract belongs to an administrative agreement), If the Supreme Court held in the (2019) Supreme Law Enforcement Shen No. 2322 ruling that"Before the listing of the land involved in the case, You Yuxi and the Xiuyu District Government signed a sued agreement, setting a transaction floor price of 700000 yuan/mu, and agreed to return the full amount of the actual transfer price to You Yuxi. This agreement actually controls the transfer price of the land, strengthening You Yuxi's competitive advantage in an improper manner, thereby excluding and damaging other bidders from participating in the bidding." right. "You Yuxi and the Xiuyu District Government excluded other bidders by agreeing on the return of land transfer fees prior to the auction and transfer of the land use rights of the plot involved, in violation of the principle of fairness and openness that should be followed in the auction and transfer of land use rights.". "Moreover, the return of the subject matter agreed upon by both parties directly refers to the land transfer fee, which also harms the national interests," and based on this, it is determined that the administrative agreement involved in the case is invalid. 

(3) Administrative agreements cannot be concluded according to the nature of the matter or the provisions of laws, regulations, and rules

Considering the administrative purpose of administrative agreements, as well as the national and social public interests involved, not all administrative affairs are suitable to be completed by administrative agreements. For example, in the field of public security management and other interference in administrative and tax management, administrative agencies can only adopt administrative penalties in principle. "The law clearly stipulates that no administrative agreement may be adopted, or according to the nature of administrative affairs, it is not suitable to adopt the method of administrative agreement. If the administrative organ adopts the method of administrative agreement, the agreement is invalid.". For example, in judicial practice, some public security organs sign public security contract agreements with specific companies, and the specific companies complete the amount of fines, which has caused strong dissatisfaction in society. This is a situation where administrative agreements cannot be signed according to the nature of the matter, and is a typical invalid agreement. 

(4) Other significant and obvious illegal situations

This item is a cover clause. For example, the content of an administrative agreement cannot be realized by anyone, the performance of the content of an administrative agreement constitutes a crime or leads to serious violations, the content of an administrative act clearly violates public order and good customs, and the implementation of an administrative act will seriously harm the public interest or the legitimate rights and interests of others [10], and so on. 

In practice, the following issues have caused relatively many disputes, and the disputes are also relatively large. 

① How effective is a franchise agreement that has not been signed through the bidding process?

Article 30 of the Minutes of the National Court Civil and Commercial Trial Work Conference ("Nine People's Minutes") stipulates that "the following mandatory provisions shall be recognized as' valid mandatory provisions':... where the transaction method is seriously illegal, such as a contract entered into in violation of competitive contracting methods such as bidding.". 

In judicial practice, most people consider it invalid. As the Anhui High Court held in its (2019) W.H.Z. No. 522 judgment, "If the conclusion and performance of an administrative agreement require legal procedures, such as bidding procedures, the people's court should review whether the agreement has passed or complied with the legal procedures, and then make a judgment on the effectiveness of the administrative agreement. The BOT project involved in this case requires legal bidding procedures, and there have been two types of administrative agreement acts, and the corresponding legal relationship and legal consequences are notSame. The first administrative agreement refers to a situation where an agreement is concluded through investment promotion without going through legal bidding procedures, which is considered invalid according to law [11]. "The second administrative agreement, although in the form of tendering, violates the legal requirements for tendering and bidding, and the tendering and bidding procedures are invalid. Administrative agreements cannot be concluded between the tendering and bidding parties according to law.". In the (2018) JXS No. 314 ruling, Jilin High Court held that the corresponding contract signed between the Management Committee and the Company should be determined to be invalid due to violation of the mandatory provisions of the Bidding Law, as the Company applied for the franchise rights of the Fanjiatun Water Supply Project without going through the bidding process. The Xingtai Intermediate People's Court held in the judgment (2021) Ji 05 Xing Zheng No. 20 that the franchise agreement involved in the case was not signed through bidding procedures before signing, and was not signed through competitive negotiation. Therefore, violating the mandatory provisions of the law should constitute an invalid agreement. 

② Has the housing compensation agreement signed for collective land not been approved for land acquisition been invalid?

The judges have different opinions. In the (2020) Liao Xing Zhong No. 11 judgment, the Liaoning High Court held that: "The Shuncheng District Government and Qiandian Town Government have not provided evidence to prove that the expropriation of collective land has been approved and has performed the expropriation procedures prescribed by law, and there are significant and obvious violations. The Qiandian Town Government signed the Land Acquisition Compensation Agreement with the Taishan Village Committee based on the expropriation behavior." "There are also significant and obvious violations", and it is hereby confirmed that the Land Acquisition Compensation Agreement is invalid. Chuzhou Intermediate People's Court held in the judgment (2015) CHXCZ No. 00008 that:, "According to the Implementation Regulations of the Land Administration Law of the People's Republic of ChinaArticle 25 stipulates that. "In this case, Mingguang City People's Government violated the procedures set forth above and organized the implementation of land expropriation before the land requisition application was approved. In addition, without providing valid ownership certificates, it signed a compensation and resettlement agreement with Zhu Anli. The compensation and resettlement agreement lacked evidence and violated legal procedures at the time of signing, and should be confirmed as invalid." 

contrary, In the (2020) Supreme Court ruling No. 9619, the Supreme Court held that"An administrative agreement can only be confirmed as invalid if it contains significant and obvious violations, violates the mandatory provisions of laws and regulations, and harms the national interests, public interests, and the legitimate rights and interests of others. Otherwise, the effectiveness of the administrative agreement should be recognized. Frequently returning the administrative agreement reached by both parties through consultation to the original point, not only hinders the functioning of the administrative agreement, but also runs counter to the parties to the administrative agreement." The timely and effective realization of human rights and obligations. "The Villagers' Housing Compensation Agreement sued in this case was voluntarily signed by both parties, and its contents do not contain any significant and obvious violations of the aforementioned laws, damage to national interests, public interests, or the legitimate rights and interests of others, and other invalid situations. The reasons for Luo Shifu's application for retrial are insufficient, and this court does not support it." Similarly, in the (2020) Supreme Court ruling No. 13542, "The fact that the land acquisition involved in the case related to the acquisition decision has not been approved by the relevant departments does not necessarily lead to the invalidity of the Housing Acquisition and Subsidy Agreement. This case is sued for the Housing Acquisition and Subsidy Agreement." "This agreement is voluntarily signed by both parties, and its contents do not contain any significant and obvious violation of the aforementioned legal provisions, damage to national interests, public interests, or the legitimate rights and interests of others, and other invalid situations.". More importantly, the agreement has been actually implemented after signing. "Xu Qianhua claimed that the Housing Requisition and Subsidy Agreement was invalid on the ground that the land acquisition involved in this case has not been approved by the relevant departments, and this court does not support it." 

③ The conclusion of an administrative agreement is deemed invalid without legal procedures such as democratic negotiation

In the (2014) SFHSCZ No. 3 judgment, the court held that the land under the "Land Acquisition Agreement" belongs to collectively owned land, and the villagers' group did not convene a villagers' group meeting to discuss and decide on matters involving land acquisition, compensation, and other matters of significant interest to the villagers, in violation of the mandatory provisions of the "Organization Law of the Villagers' Committee", It is confirmed that the "Land Acquisition Agreement" signed by the Ganzhoukeng Villagers' Group of the Lianhua Villagers' Committee of Haicheng Town, Haifeng County, the plaintiff, and the original People's Government of Lianhuashan Town, Haifeng County, is invalid. 

（3） Civil legal norms for determining the invalidity of administrative agreements

According to Article 143 of the Civil Code, civil juristic acts that simultaneously meet the following conditions are valid: (1) the perpetrator has corresponding civil capacity; （2） The expression of intention is true; （3） Do not violate the mandatory provisions of laws and administrative regulations, and do not violate public order and good customs. It can be seen that both the emphasis on the capacity of the contract subject in civil law and the emphasis on the qualification of the administrative subject in administrative law emphasize the contracting qualification and authority of the parties to the agreement. Whether in public or private law rules, the qualifications and capacity of the contracting party are considered as one of the conditions for determining the effectiveness of an agreement. 

Article 52 of the original Contract Law stipulates that a contract is invalid under any of the following circumstances: (1) One party enters into a contract by fraudulent or coercive means, thereby harming the interests of the state; （2） Malicious collusion to harm the interests of the state, the collective, or a third party; （3） Covering up illegal purposes in legal form; （4） Damage to social and public interests; （5） Violation of mandatory provisions of laws and administrative regulations. 

According to the provisions of Articles 144, 146, 153, and 154 of the Civil Code, a civil juristic act committed by a person without civil capacity, a civil juristic act committed by the perpetrator and the counterpart with a false declaration of intent, or a civil juristic act that violates the mandatory provisions of laws and administrative regulations, Civil legal acts that violate public order and good customs, as well as civil legal acts in which the perpetrator maliciously colludes with the counterpart to harm the legitimate rights and interests of others, are invalid. 

The above provisions require that the contract shall not "violate the mandatory provisions of laws and administrative regulations", otherwise the contract shall be invalid. Two questions arise when examining the effectiveness of administrative agreements: 

First, is it necessary to distinguish between the mandatory provisions of laws and administrative regulations that determine the invalidity of administrative agreements?We believe that there is no need to make a distinction. "Because the purpose of signing an administrative contract itself is to achieve administrative purposes, once the contract is signed in violation of existing regulatory norms, it cannot be compatible with the overall administrative order. At this time, it is still recognized that its effectiveness is not in line with the needs of administrative practice.". 

Second, is the scope of the law still limited to laws and administrative regulations?We believe it is not limited to. In administrative practice, laws, administrative regulations, local regulations, rules, and normative documents constitute the guiding norms for administrative organs to administer according to law. Therefore, it is not allowed to deny their binding effect on the administrative organs themselves because of their low level of effectiveness. As long as it is a legal and effective norm with substantial binding force, it cannot simply be ignored from the perspective of administrative law. In general, the scope of mandatory provisions cannot be too narrow [13]. 

3、 Pending administrative agreement

"An administrative agreement with undetermined effectiveness, either because the administrative counterpart is a person with no or limited civil capacity, and the agreement signed by the administrative counterpart is subject to ratification by its legal representative, or because the agent of the administrative counterpart has performed an unauthorized act of agency, should also be confirmed by the administrative counterpart himself.", Or because it requires legal procedures for approval before it becomes effective. 

In the last case, Article 13 of the Judicial Interpretation of Administrative Agreements stipulates that if an administrative agreement that is required by laws and administrative regulations to take effect after approval by other organs or other procedures has not been approved before the conclusion of the court debate of first instance, the people's court should confirm that the agreement has not taken effect. "If the administrative agreement stipulates that the defendant has obligations such as performing the approval process, but the defendant fails to do so, and the plaintiff requires the defendant to bear the liability for compensation, the people's court shall support it.". 

In practice, some competent collection departments adopt an advance collection method, that is, signing an advance compensation agreement with effective conditions with the person to be expropriated. If the proportion of advance contracts reaches 70% or more within the specified time, the signed housing acquisition compensation and resettlement agreement becomes effective, and the lot is officially expropriated. That is, before the signing proportion reaches the agreed proportion, the "Pre Signing Agreement" is in a state of pending effectiveness. "If the final signing proportion does not meet the standard, the Pre Signing Agreement is determined to be ineffective [14].". 

4、 Revocable administrative agreement

Administrative agreement acts also have a revocable status. There are two situations in which an administrative agreement can be revoked: one is that the expression of intention is untrue, and the other is that there is a lack of legitimacy. 

In the first case, the revocability of an administrative agreement refers to the elimination of an effective agreement through the exercise of the revocation right by the person with the revocation right due to the untrue expression of the intention of the administrative agreement. Article 14 of the Judicial Interpretation of Administrative Agreements stipulates that if the plaintiff believes that the administrative agreement is subject to coercion, fraud, significant misunderstanding, or obvious unfairness, and requests cancellation, the people's court may, upon trial, decide to cancel the agreement if it considers that it meets the conditions for cancellation prescribed by law. 

Coercion and fraud are revocable cases of civil contracts, while in the field of administrative agreements, they are generally invalid cases. As an organ of public power, administrative organs should exercise their functions and powers reasonably and prudently according to law. If an administrative organ adopts fraud or coercion, in fact, the degree of fault is "intentional" rather than negligent. In general, it not only belongs to general illegal situations, but also belongs to "significant and obvious" situations, that is, it should belong to invalid situations. For the administrative counterpart, adopting the above means also has a "intentional" nature, with strong subjective malice, and is bound to infringe on national or social public interests, thus belonging to the situation of invalid agreement [15]. Therefore, in general, whether signed by an administrative organ or an administrative counterpart through fraud or coercion, when concluded, it will harm the interests of the country, and it is an invalid agreement. The reason is: First, as long as both parties to the agreement adopt the above methods, they will actually harm the national interests. Secondly, signing an agreement in the above-mentioned manner not only "harms the national interests", but also harms the social and public interests. Thirdly, administrative agencies' adoption of "fraudulent and coercive means" completely violates the requirements of legitimate and good administration, and is a "significant and obvious" violation of the law [16]. 

In addition to the aforementioned fraud and coercion situations, from the perspective of the characteristics of administrative agreements, there are mainly two types of situations that constitute the revocation of administrative agreements: 1Enter into an agreement due to material misunderstanding. 2. Obvious unfairness in entering into an agreement. 

According to Article 10, Paragraph 2, of the Judicial Interpretation of Administrative Agreements, if the plaintiff advocates the revocation of the administrative agreement, the burden of proof shall be borne for the reasons for the revocation of the administrative agreement. The judge may refer to Article 109 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China to prove the facts of fraud, coercion, and malicious collusion by the parties, "If the people's court is convinced that the possibility of the existence of the facts to be proved can exclude reasonable doubt, it shall determine the existence of the facts.". 

In the second case, the lack of legitimacy can also lead to the revocation of administrative agreements. It is common for administrative acts to be revoked due to their general illegality. In response, Article 11 of the Judicial Interpretation of Administrative Agreements stipulates that when hearing administrative agreement cases, the people's court should review the legality of whether the defendant's act of concluding an administrative agreement has legal powers, whether it has abused its powers, whether the application of laws and regulations is correct, whether it complies with legal procedures, whether it is manifestly inappropriate, and whether it has performed corresponding legal responsibilities. Article 70 of the Administrative Procedure Law stipulates that in any of the following circumstances, an administrative act shall be annulled or partially annulled by a judgment of the people's court, and the defendant may be adjudged to repeat the administrative act: (1) The main evidence is insufficient; （2） Incorrect application of laws and regulations; （3） Violating legal procedures; （4） Exceeding one's authority; （5） Abusing power; （6） Obviously inappropriate. In practice, there are few cases in which courts have revoked administrative agreements based on this provision. 

5、 Legal Consequences of Invalid, Cancelled, and Determined Ineffectiveness of Administrative Agreements

Article 15 of the Judicial Interpretation of Administrative Agreements stipulates that after an administrative agreement is invalid, revoked, or determined to have no effect, the people's court shall make a judgment to return the property acquired by the parties due to the administrative agreement; "If it cannot be returned, a judgment shall be made for compensation at a discount.". If the administrative agreement is confirmed to be invalid or revoked due to the defendant's reasons, the defendant may be ordered to take remedial measures at the same time by a judgment; "If losses are caused to the plaintiff, the people's court shall award compensation to the defendant.". 

It is generally believed that the liability for compensation arising from the invalidity of a civil contract is the liability for contracting negligence, while the liability for compensation arising from the validity of the contract is the liability for breach of contract; The scope of liability for compensation for contract invalidity mainly includes the loss of trust interests, while the scope of liability for breach of contract includes the loss of performance interests. The loss of reliance interest mainly refers to the compensation by the fault party for the losses suffered by the other party due to the invalidity (non establishment or cancellation) of the contract, that is, the compensation by the fault party for the actual losses suffered by the other party due to the effective establishment of the trust contract, including the cost losses incurred in the process of contracting, the loss of additional site facilities and equipment value added for the performance of the contractOther expenses and losses incurred for the performance of the contract. The purpose of compensating for the loss of trust interests is to restore the interests of the innocent party to the state before the contract was signed: that is, if it were not for the purpose of signing and performing the contract, the innocent party would not have incurred the above expenses; If the contract is valid, the above expenses incurred by the non fault party will be compensated from the benefits of contract performance. However, the compensation for loss of reliance interest should not include the loss of expected performance interest that may be obtained if the contract is valid according to law; "Only when the contract is valid and the breaching party fails to perform its contractual obligations or the performance of its contractual obligations is not in accordance with the agreement, causing losses to the observant party, can the observant party claim the benefits of performance and the benefits that can be expected after the performance of the contract, and the benefits of performance should not exceed the losses that the breaching party had foreseen or should have foreseen due to the breach of contract when concluding the contract.". 

The above rules also apply to administrative agreements. In short, if the administrative agreement is not established or invalid, the parties may file a lawsuit to pursue the other party's liability for breach of contract, and the people's court will not support it according to law [17]. As a result of this, Article 22 of the Judicial Interpretation of Administrative Agreements"The plaintiff requests the people's court to order the defendant to bear the liability for breach of contract on the grounds of the defendant's breach of contract. If the people's court deems the administrative agreement invalid after the 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 judge the defendant to bear the liability for compensation according to law. After the plaintiff's explanation"If a person refuses to modify his claim, the people's court may make a judgment rejecting his claim." 

6、 Conclusion

To sum up, there is a complex correspondence between the effectiveness and legality of administrative agreements, which requires specific analysis on a case by case basis. It is not simply "legal means effective, illegal means invalid". Legitimacy and illegality are single dimensional judgments based on legal norms, while effectiveness judgments are essentially value judgments. Legitimacy is a step in the process of effectiveness judgment, which also includes value judgments such as purposiveness and efficiency. Therefore, for efficiency reasons, actions with minor program flaws can still be considered effective. Legitimate acts can also be considered invalid because they do not conform to values such as justice or are extremely unreasonable [18]. If the cause of invalidity is eliminated before the conclusion of the first instance debate, the effectiveness of the agreement can be supplemented and corrected. 

The standard of "significant and apparent illegality" is abstract and flexible, and in itself gives courts a certain amount of discretion. Our research has found that courts rarely apply "significant and apparent illegality" to determine the invalidity of administrative acts, and rarely apply "significant and apparent illegality" to determine the invalidity of administrative agreements. For both parties and lawyers, it is difficult to win a lawsuit of invalid administrative action. In contrast, the lawsuit of invalidity of administrative agreements is relatively easy due to the inclusion of considerations of invalidity of civil contracts. However, the judge is very cautious in determining the invalidity of the administrative agreement, and tries to recognize or promote the validity of the administrative agreement. For minor violations that can be remedied, the effectiveness of the agreement will not be affected. 

References and Notes: 

[1] "Understanding 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. 177, People's Court Press. 

[2] "Standards for Judicial Determination of Invalid Administrative Agreements", Wang Jingbo, China Law Journal, Issue 3, 2019. 

[3] "Interpretation and Application of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases," edited by the Administrative Tribunal of the Supreme People's Court, pp. 181-182, People's Court Press. 

[4] "Standards for Judicial Determination of Invalid Administrative Agreements", Wang Jingbo, China Law Journal, Issue 3, 2019. 

[5] Article 2 of the Interpretation of the Supreme People's Court on the Applicable Law Issues in the Trial of Cases Involving Disputes over the Use Right Contract of State-owned Land: The land use right transfer contract concluded between the Development Zone Management Committee as the transferor and the transferee shall be deemed invalid. Before the implementation of this interpretation, the development zone management committee, as the transferor, entered into a land use right transfer contract with the transferee. If the contract was ratified by the natural resources department of the municipal or county people's government before the lawsuit was filed, the contract can be recognized as valid. Article 15 (2) of the Urban Real Estate Management Law: The contract for the transfer of land use rights shall be signed between the land management departments of the municipal and county people's governments and the land users. 

[6] Articles 14 and 18 of the Administrative Measures for Franchising Infrastructure and Public Utilities, and Article 18 of the Shandong Provincial Heating Regulations. 

[7] "Understanding and Application of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases," edited by the Administrative Tribunal of the Supreme People's Court, p. 182, People's Court Press. 

[8] "Understanding and Application of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases," edited by the Administrative Tribunal of the Supreme People's Court, p. 183, People's Court Press. 

[9] See "Analysis of the Legal Effect of the Land Hook Agreement", WeChat official account "Daokot Law Vision", May 11, 2021. 

[10] "Understanding and Application of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases," edited by the Administrative Tribunal of the Supreme People's Court, p. 183, People's Court Press. 

[11] The Supreme People's Court issued the "9. Lingshi Company, Zhenghe Company v. People's Government of Guoyang County, Mengcheng County, Anhui Province, People's Government of Lixin County, Anhui Province, requesting the conclusion of franchise administrative agreements" of 10 typical cases of administrative agreements (2021). 

[12] "Judicial Review of Administrative Agreements", Jiang Bixin, published in People's Justice, 2016, Issue 34. 

[13] "Judicial Review of Administrative Agreements", Jiang Bixin, published in People's Justice, 2016, Issue 34. 

[14] The Supreme People's Court issued the second batch of typical cases of administrative agreement litigation (2022), "IX. Han Moumou v. the Office of Housing Acquisition on State-owned Land in Songshan New District, Jinzhou City, Liaoning Province, for not fulfilling the administrative agreement on pre acquisition.". 

[15] Several Trial Rules for the Confirmation of the Effectiveness of Administrative Agreements, Liang Fengyun, published on the WeChat official account "Administrative Law Enforcement and Administrative Trial", July 8, 2019. 

[16] "Standards for Judicial Determination of Invalid Administrative Agreements", Wang Jingbo, published in China Law Journal, Issue 3, 2019. 

[17] The Supreme People's Court issued the "9. Lingshi Company, Zhenghe Company v. People's Government of Guoyang County, Mengcheng County, Anhui Province, People's Government of Lixin County, Anhui Province, requesting the conclusion of franchise administrative agreements" of 10 typical cases of administrative agreements (2021). 

[18] "Judicial Review of Administrative Agreements", Jiang Bixin, published in People's Justice, 2016, Issue 34.