行政協議中的平等原則

行政協議乃是行政主體主動進入市場、尋求與市場主體開展合作的嘗試，雙方當事人只能通過平等協商才可達成關於權利、義務的合意，進而建立行政協議關係，這與民事合同完全一致；公法及行政法基礎理論的現代演進，也使得行政主體與相對人之間不再表現為傳統的“命令-服從”模式，而逐步走向雙方法律地位的平等，這也為平等原則在行政協議中的適用提供了可能。然而，不同於民事合同之平等原則，行政協議之平等原則具有更富包容性的內涵，其並不限於民事合同中所要求的雙方在權利、義務上的“對等”，而同時涵括雙方在權力與權利上的“結構性均衡”，此兩種平等模式圍繞如何更好地實現公共利益這一目的交替並存。此種“交替式二元性”的特徵，就導致行政協定中雙方當事人在法律地位上的平等並不必然指向《合同法》第三條所規定的“一方不得將自己的意志強加給另一方”的訓條，進而能夠與行政主體之單方變更權及單方解除權協調並存。

In administrative contracts, when the administrative subject actively enters into the market and attempts to seek for the cooperation with the market subject, only when based on the principle of equality can both of these two subjects reach an agreement on their rights and obligations so as to establish the relationship of administrative contract. In this aspect, the model of administrative contract totally accords with the civil contract. Due to the modern evolution of public law and administrative law’s basic theories, the relation between the administrative subject and the market subject is no longer the ''command-compliance'' model but gradually turns to share an equal legal status. Thus, it is possible for the principle of equality to be applied in the administrative contract. However, different from the principle of equality in the civil contract, the principle of equality in the administrative contract should have more inclusive connotation. Generally, the two subjects in the administrative contract are not only confined to the equality in rights and obligations but also reach the structural balance in right and power. These two equality models alternately exist with the aim to better realize public interest. With this trait of ''alternative-duality'', these two subjects in the administrative contract should have equal legal status rather than following the third article of Contract Law that one party would not force its will upon another party so as to coordinate and coexist with the administrative subject’s one-sided change right and one-sided dissolution right.