作者：余凌云
作者介绍：清华大学法学院教授
出版日期：2025年8月9日
内容提要 由于民事履约机制力有不逮，难以确保行政协议按质按期按量完成，需要赋予行政机关行政优益权。这本质上是行政机关履行法定职责、依法行政的要求，旨在解决行政机关以行政协议履行具体行政职责方式与行政机关对社会公众的普遍行政职责之间的冲突。从这个底层逻辑出发，不仅能够摆正行政优益权与行政协议之间的关系，也能够理解和澄清其与民法规定之间的替代关系。为防止行政优益权滥用，法院应当对行政机关行使行政优益权的合法性，按照“案涉行政协议具有行政优益权的合法性—行政优益权行使的合法性—是否辅以合理补偿”顺序进行严格审查。
关键词 行政协议 行政优益权 法律控制
Abstract: The reason why administrative agencies need administrative advantage rights is that the civil performance mechanism is not strong enough to ensure that administrative contracts are completed on time and in quantity according to quality. Essentially, it is the requirement for administrative agencies to fulfill their statutory duties and lead the performance of contracts in accordance with the law, in order to resolve the conflict between the specific administrative duties performed by administrative agencies through administrative contracts and their general administrative duties to the public. Starting from this underlying logic, it is not difficult for us to understand and clarify the substitution relationship between administrative advantage rights and relevant provisions of civil law, but also to rectify its relationship with administrative contracts. In order to prevent the abuse of administrative advantage rights, the court should conduct a strict review of the legality of the exercise of administrative advantage rights by administrative agencies, based on the order of ‘legality of administrative advantage rights in the administrative contract involved in the case — legality of the exercise of administrative advantage rights — whether it is supplemented by reasonable compensation’.