The Reinterpretation of the Unconscionability of Administrative Agreements
Article 14 of the Provisions of the Supreme People's Court on Several Is-sues Concerning the Trial of Administrative Agreement Cases introduces directly from the civil law the rule of unconscionability as one of the revocable grounds of administrative agreements.In the case of Kazhumi Company v.the People's Government of Licheng District,the Supreme People's Court proposed a dual-layered framework of judgment for applying the rule of uncon-scionability in cases of administrative agreements.Specifically speaking,the framework con-tains two parts,the judgment of the unanimous consent of the two parties under civil law and the review of the contractual behaviors of administrative agencies under administrative law.The rule of unconscionability in administrative agreements,like the similar rule in civil law,reflects the correction of contractual freedom by contractual justice through the evaluation of the effective-ness of administrative agreements,which is based on the concept of substantive fairness.The principle of contractual freedom in administrative agreements should be respected by the legisla-tive and judiciary authorities.Otherwise,the significance of administrative agreements will be fundamentally weakened.When it comes to the judgment of unanimous consent of two parties under civil law,courts should not copy the relevant theories in civil law without any modifica-tion,but reconstruct the connotation of unconscionability in administrative agreements according to the institutional functions and characters of administrative agreements.Therefore,the theory of dual elements should also be adopted in the determination of unconscionability in administra-tive agreements.Compared to the theory of one single objective element,the theory of dual ele-ments is stricter,enabling courts to take a more cautious attitude towards the determination of whether to revoke an administrative agreement or not.This could increase the possibility of a-chieving the public goals of administrative agreements while,at the same time,does not mean that the legitimate rights of private parties could not be fully protected.When it comes to the re-view of the contractual behaviors of administrative agencies under administrative law,such be-haviors are constrained not only by general and special provisions,but also by the basic princi-ples of administrative law.However,the legality review of contractual behaviors should be con-tained in the evaluation of the effectiveness of administrative agreements.The prohibition of im-proper connections,as a criterion for legality review,plays an important role in limiting arbi-trary behaviors of administrative agencies by examining whether substantive relationships exist between the obligations of both parties as well as between the obligations and the purpose of an administrative agreement.
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