《行政诉讼法》的修订将行政协议案件纳入行政诉讼受案范围,并明确规定政府特许经营协议属于行政协议的范畴,但通过“中国裁判文书网”的检索发现,在新法实施后仍有大量政府特许经营协议以政府合同为名进入了民事诉讼。在H省H市人民政府与XL公司合同纠纷案中,最高人民法院以协议主体地位平等、意思自治;协议目的包含私人利益;协议条款不涉及公法因素为由,裁定涉案协议为民商事合同,案件适用民事诉讼程序。最高院的裁定依据及结论与现有立法、相关学理相冲突,其只关注到行政协议与民事合同的共性问题,而忽略了政府特许经营协议的行政性特征。政府特许经营协议是一种典型的行政协议。 The revision of the Administrative Procedure Law included the administrative agreement cases into the scope of the accepted administrative proceedings and clearly stipulated that the government concession agreement belongs to the scope of the administrative agreement. However, the search through the website of the Chinese Judgment Paper found that after the implementation of the new law A large number of government franchise agreements entered the civil lawsuit under the government contract. In the case of the contract dispute between H City People’s Government and XL Company in H Province, the Supreme People’s Court acted as the main body of the agreement with the principle of equality and autonomy of purpose; the purpose of the agreement was to include private interests; the terms of the agreement did not involve public law and the agreement was concluded as civil and commercial contracts, Cases apply to civil procedure. The ruling basis and conclusions of the Supreme People’s Court conflicted with the existing legislation and relevant theories. It only focused on the common problems of administrative agreements and civil contracts, while neglecting the administrative features of government concession agreements. Government franchise agreement is a typical administrative agreement.