公共利益研究

【作者】 肖顺武；

【导师】 卢代富；

【作者基本信息】 西南政法大学 ， 经济法学， 2008， 博士

【摘要】 问题是时代的口号,是时代精神状态最实际的呼声。公共利益是一个人们普遍关注的问题。但是,我们既不能在理论上对公共利益进行界定,也不能在实践中保障公共利益的合理实现。公共利益是一个牵涉到私权行为限度的问题,也是一个涉及到公权行为正当性的问题。如何合理地界定公共利益,进而保障公共利益的实现既不因为界定不清而受到不当损害,也不因为含义不明而成为不当限制私权的借口,这是摆在我们面前的一个现实难题。本文认为,公共利益的界定不能仅仅停留在概念的分析上,需要我们透过概念的表象看到其后面反映的权力与权利、公法与私法、国家与个体之间那种错综复杂的深层次关系。从终极意义上讲,公共利益的界定是工具性的,而如何保障公共利益的实现过程符合法治社会的基本要求才是我们的目的。同时,在公共利益的实现过程中,要特别防止那种打着“公共利益”旗号损害个体权益的不当行为。本文认为,公共利益是由不特定多数主体享有的、具有整体性、层次性和发展性的重大利益。文章的基本论证思路是:发掘公共利益成为一个“问题”的原因,进而以考察中外学术界关于公共利益的研究为契机,在厘定公共利益实现过程中应遵守的基本原则的基础上,建构以公共利益听证为中心的公共利益实现方式,最后根据此种理论建构,对土地征收中如何保障公共利益的实现和如何防止土地征收中公共利益对私人利益的不当损害进行实证分析。需要指出的是,建构以公共利益听证程序为中心的公共利益实现方式并不意味着对公共利益的实体进路之否定。相反,笔者认为:既要从概念上明确公共利益,也要注重公共利益实现中应遵守的基本原则。只有通过“概念—原则—程序”这种“三位一体”的方式,我们才可能合理地保障公共利益的实现。具体而言,文章的主干部分由五章构成,分述如下:第一章对公共利益为什么会成为一个“问题”之原因进行了解析。这一部分也可以叫做原因篇。概言之,公共利益之所成为一个问题,既有公共利益概念界定不清的影响,也有体制及文化的影响。这具体表现为以下五个方面:一是公共利益的概念本身就比较复杂:一方面,“公共”的概念具有模糊性;另一方面,“利益”的含义又异常丰富,因此,我们很难从概念的角度对公共利益进行精确的界定;二是公共利益这一概念易与其他概念发生混淆。事实上,“公共利益”与“个人利益”、“集体利益”、“社会利益”和“国家利益”之间的关系可谓“盘根错节”,十分复杂,这也是我们在公共利益的实现中“说不清、道不明”的原因之一;三是公共利益的界定面临制度的困境。由于法律自身的局限性以及立法技术的制约,使公共利益在法律上的界定往往也失之抽象或空洞,这也加大了人们实现公共利益的难度;四是公共利益的实现面临体制的困境。特别是我国处于转轨时期,政府在市场经济体制的构建中起着主要推手的作用,而依法治国又要求政府行为必须具有强公性假设。于是,政府往往以实现公共利益的需要来使其行为正当化,这使公共利益很容易成为社会公共话语的焦点;五是公共利益的实现面临文化的困境。由于国家观念缺乏、家国不分的传统、国家和社会同构、中央集权的传统以及法律文化传统深受儒家思想影响,使公共利益的实现在我国缺乏一些深层次的支撑因素。第二章考察了中外学术界对公共利益的研究情况,在此基础上,探讨了此种研究对于我们界定和实现公共利益的启示。这一部分也可以称为比较篇。就我国学术界关于公共利益的探索而言,主要集中在以下几个问题上:一是对公共利益是什么的探索。笔者在梳理此种研究的基础上,归纳出10种具有代表性的观点。同时,学术界对公共利益的内容、特点及如何处理公共利益与个人利益的关系也有一些有价值的探讨,甚至不乏筚路蓝缕之功:二是对公共利益应该由哪一主体来实现、公共利益界定的标准是什么、公共利益在法律上如何规定进行了研究,这对于我们界定和实现公共利益具有重要的参考价值;三是对通过什么方式实现公共利益进行了一些比较深入的思索。就国外学术界对公共利益的研究而言,则主要集中在以下几个问题上:一是关于公共利益的主要观点的研究。就肯定公共利益存在的观点而言,笔者归纳出10种具有代表性的论点;就否定公共利益存在的观点而言,主要有两种代表性的观点。此外,笔者注意到,国外学术界还有一些关于公共利益的总结性的研究;二是对公共利益的内涵的探讨;三是对公共利益的界定标准、如何处理公共利益和个人利益的关系等问题的研究。总体而言,中外学术界关于公共利益的研究对笔者的启示是:公共利益是复杂的,企图通过实体或者下定义的方式来保障公共利益的实现是很难行得通的。公共利益已陷入一种人言人殊的境地,因此,要保障公共利益的合理实现,就要改变过去那种研究和实践进路,构建以听证程序为中心的公共利益实现方式。第三章论述实现公共利益应遵守的基本原则。这一部分可简称为原则篇。实现公共利益要走以程序为中心的路子,但也不能完全忽视从实体方面进行考虑,提出公共利益实现过程中的基本原则就是笔者此种思考的产物。当然,对这些原则的遵守从某种程度上讲既是一种实体的要求,也是一种程序的要求。本文认为,公共利益的实现过程要遵守三项基本原则:一是正当程序原则。如果说程序是法律之皇冠,那么正当程序就是皇冠上的明珠。正当程序通过构建一种复合的对话机制——包括不当干扰排除机制、异质诉求表达机制、运作过程披露机制、专业性判断机制、心理游说机制——以达成最终的共识性结果。虽然公共利益的实现具有复杂性,但是,通过这种程序构建的复合对话机制的有效运作,就能在一定程度上保障公共利益得到合理的实现;二是比例原则。法治社会要求公权力以公共利益为本位进行运作,而比例原则对于规范公权力的行使具有重要的意义:一方面,比例原则对公权力的行使具有指导性的作用;另一方面,比例原则也是测度公权力行为是否适当的一个工具。具体而言,比例原则包括适当性原则、必要性原则和均衡原则三个子原则。比例原则对于合理实现公共利益具有重要的指引价值:三是公平补偿原则。概括来讲,公平补偿原则就是要求行政机关因为实现公共利益的需要而不得不损害当事人权益时,要对当事人进行补偿,并且补偿的标准要在公平地衡量公共利益及当事人利益的基础上进行确定。在学术界,就公共利益受到损害究竟应该如何补偿主要有三种代表性的观点:完全补偿说、适当补偿说和公平补偿说,本文采公平补偿说。事实上,遵守公平补偿原则的意义远不是仅仅补偿相对人利益损失所能涵盖的,其对补偿公平性的要求实质上是从经济的角度对公权力行为进行合理的限制。也就是说,公平补偿原则的存在,使行政机关不能动辄以公共利益的名义进行征收:因为国库虽然是有保障的,但并不是无限的而且也是受国家预算控制的,这将有力地促进行政机关之审慎与勤勉,进而有效防止行政机关滥用公共利益。第四章就构建以听证程序为中心的公共利益实现方式进行了论述。这一部分可以称为构想篇。首先,在对程序与听证程序进行理论分析的基础上,主要论证了为什么要选择听证程序来实现公共利益。传统的实现公共利益的方式面临种种困境,选择听证程序来实现公共利益,是对公共利益的实现与听证程序的契合性洞悉的结果;其次,笔者就我国公共利益听证程序之建构提出具体的设想。其核心论点如下:一是提出了我国公共利益听证程序要遵守的基本原则;二是要建构一套适合我国国情的公共利益听证主体制度;三是就我国公共利益听证程序如何进行提出了一些建议和思考;四是就我国公共利益听证的监督制度如何架构提出了几个基本的设想;最后,本文就我国公共利益听证程序在实现公共利益中的作用进行了反思。我们一方面要看到公共利益听证程序的巨大作用,另一方面也要看到这种作用的有限性,不可随意夸大。必须认识到,公共利益听证程序实现的正义很可能只是一种不完善的正义。而且,我们要充分理解行政机关为什么要在公共利益的实现中起决定作用的关键原因——公共利益的实现必须以一定的公共意志为基础。第五章以土地征收为例对公共利益进行实证分析。这一部分可以称为实证篇。首先,土地征收必须也只能以公共利益为目的。笔者主要论述了土地为什么成为征收的重要对象、土地征收的权力依据以及土地征收的正当化基础;其次,本文就土地征收中如何贯彻实现公共利益的基本原则——正当程序原则、比例原则及公平补偿原则进行了比较深入的分析;最后,文章就土地征收中怎样举行公共利益听证会进行了探讨:一是明确了土地征收中公共利益听证应遵守的原则;二是就土地征收中如何让相关的主体发挥应有的作用进行了思考;三是就土地征收中如何召开公共利益听证会以及举行听证会时应注意的几个问题进行了分析。更多还原

【Abstract】 Problem is the slogan of the era, and it is the most actual call of the spiritual status of the era. Public interest is a problem that focuses people’s universal attention. However, on the one hand, we are unable to define public interest effectively in theory, and on the other hand, we are unable to protect public interest in practice. Public interest is a problem involving both the limitation of private power and the justification of public power behavior, therefore, it is of great significance how to define public interest reasonably in order to ensure that public interest neither is improperly harmed due to unclear definition nor becomes the basis for improper restriction of power due to ambiguous meaning. This article argues that the definition of public interest cannot rest on the analysis of concept, and instead, we need to penetrate the complicated deep-layer relationship between power and right, public law and private law, country and individual beneath the surface of concept. From the aspect of ultimate significance, the definition of public interest is a problem of methods, and the goal is how to ensure that the process of realizing public interest conforms to the basic requirement of the legal society. At the same time, we must prevent improper behavior that harms individual rights and interests with the excuse of public interest.This article argues that public interest is the vital interest shared by unspecific majority main bodies and characterized by integrity, hierarchy and development. The basic thought of this thesis is as the following: first, it seeks to find why public interest becomes a "problem", then it reviews the research on public interests in Chinese and abroad community, under the basis on stating the basic principles to be observed in defining the process to realize public interests, the thesis constructs a means to realize public interests centered by public interest hearing, and in the end, in accordance with this theoretical construction, the thesis carries out empirical analysis on how to realize public interest in land collection and how to prevent improper damage on private interest from public interest. It is to be pointed out that the means to realize public interest centered by public interest hearing procedure does not mean a complete denial on substantive approach on public interest. In contrast, the author believes that we have to define the concept of public interest; on the other hand, we have to focus on the basic principles observed in realizing public interest. Only by following the trinity of "concept, principle, and procedure" can we realize public interest reasonably. To put it precisely, the main body of this thesis consists of five chapters.The first chapter explains why public interest could become a "problem". This part can also be called the part of "reasons". To put it simply that public interest becomes a problem partly is caused by its unclear definition, and partly caused by the influence of system and culture. It is specifically revealed by the following five aspects. Firstly, the concept itself is very complicated for the dim concept on "public" and the rich implications on "interest’, it’s hard for us to make an accurate definition on public interest from conceptual perspective; secondly, the concept of public interest can easily confuse with other concepts. In fact, there’s complicated and much involved relationship between "public interest", "personal interest", "collective interest", "social interest", and "state interest", which is the second reason for the difficulty to define pubic interest. Thirdly, the definition on pubic interest is faced with systematic difficulty. For the restriction from law itself and legislative technology, it is too abstract or empty to be defined, which increases the difficulty to realize public interest. Fourthly, the realization of public interest is faced with difficulty in structure. For the special period in transition, Chinese government played a major fostering role in constructing market economic structure, and rule by law requires that the government have to act under strong publicity assumption; therefore, the government always justifies its acts for public interests, which makes public interests be the core of social public concern. Fifthly, we have to overcome cultural difficulty before public interest coming true. Many traditional thoughts such as the lack of state concept, the combination of family and state, the unity between state and society, and centralization as well as Confucian thoughts affecting our legal cultural tradition make the public interest to be realized in need of deep-level support. The second chapter mainly reviews the research on public interest by both Chinese and foreign academic circles, and discusses the enlightenment of this kind of research on our definition of public interest on this foundation. This chapter may also be called the chapter of comparison. Speaking of the exploration into public interest in the academic circle of our country, it mainly focuses on several problems as follows: One is the discussion on what is public interest. The author has summed up 10 kinds of typical viewpoints based on such research. At the same time, there was also some valuable discussion on the content and characteristics of public interest as well as how to deal with the relationship between public interest and individual interest in the academic circle, even including pioneer work despite great hardships; The second is the research on which main body shall realize public interest, what is the definition standard of public interest and how to stipulate public interest in law, which is greatly valuable for us to overcome the problem of public interest effectively. Thirdly, some thorough consideration has also been carried out on the way to realize public interest in the academic circle of our country. Speaking of the research on public interest in foreign academic circles, it mainly focuses on several problems as follows: One is the research on main viewpoints of public interest. In respect of the viewpoint of affirming the existence of public interest, the author has summed up 10 kinds of typical viewpoints; In respect of the viewpoint of negating the existence of public interest, there are mainly two kinds of typical viewpoints. In addition, the author notices that some summing-up research has been conducted on public interest in foreign academic circles; Second, the connotation of public interest has been discussed in foreign academic circles; Third, there are some valuable viewpoints on the definition of public interest in foreign academic circles, as well as how to deal with the relationship between public interest and individual interest, etc. Generally speaking, the author is enlightened by the research on public interest in both Chinese and foreign circles as follows: Public interest is complex, and it is impossible to attempt to define public interest effectively only by means of entity or definition. Public interest has fallen into a kind of position where different viewpoints have been raised. In order to solve the problem of public interest, or more accurately solve some problems arising from the realization of public interest, the key lies in changing research ways and taking the way of realizing public interest with the procedure as the center.The third chapter mainly discusses the principles to abide by in defining public interest. This chapter may also be called the chapter of principle. The pathway with the procedure at the center must be adopted in defining public interest, but we cannot completely neglect consideration in aspect of entity, and the proposal of the basic principles to abide by in defining (realizing) public interest is the result of such consideration of the author Of course, the compliance with such principles is not only a request of entity but also a request of procedure. This article argues that three basic principles must be observed in defining public interest: One is the principle of justified procedure. If the procedure is the crown of law, then justified procedure is the bright pearl of the crown. In the justified procedure, a compound dialogue mechanism—including improper disturbance elimination mechanism, heterogeneous appeal expression mechanism, operation process disclosure mechanism, specialized judgment mechanism, psychological lobbying mechanism - - is constructed in order to achieve the final result of mutual recognition. Public interest is an exceptionally complex question, but the effective operation of the compound dialogue mechanism constructed through such a procedure can guarantee the reasonable realization of public interest to a certain extent; the second is the principle of proportionality. The legal society requires that public power should be operated with public interest as the aim, and the principle of proportionality plays a significant role in standardizing the exercise of public power: On the one hand, the principle of proportionality plays a guiding role in the exercise of public power, and on the other hand, the principle of proportionality is also an instrument to measure the suitability of public interest behavior. Specifically speaking, the principle of proportionality includes three sub-principles, namely, the principle of suitability, principle of necessity and principle of balance. The principle of proportionality has important direction value regarding the reasonable definition (realization) of public interest. The third is the principle of fair compensation. In general words, the principle of fair compensation requires that the administrative department must stipulate the type and amount of compensation when the rights and interests of the party concerned are harmed due to public interest, and that the standard of compensation must be established on the basis of the fair measurement of public interest and the rights and interests of the parties concerned. In academic circles, there are mainly three typical viewpoints regarding how to compensate for damage caused by public interest: complete compensation theory, proper compensation theory and fair compensation theory. This article adopts fair compensation theory. In fact, the significance of observing fair compensation principle can never be covered by compensating the opposite party for the losses, and essentially its demand on the fairness of compensation restricts the administrative department in the exercise of public power from the economic aspect. In other words, the existence of the principle of fair compensation has made it a fact that the administrative department cannot carry out imposition arbitrarily in the name of public interest, although the treasury is ensured, it is not limitless, and moreover it is also controlled by the state budget. This will promote powerfully the prudence and diligence of the administrative department so as to prevent effectively the abuse of public interest by the administrative department.The fourth chapter mainly discusses the realization method of public interest with the hearing procedure as the centre. This chapter may also be called the chapter of construction. First, based on theoretical analysis of the procedure and the hearing procedure, the author mainly demonstrates why the hearing procedure has been chosen to define public interest. This article argues that the traditional method of defining public interest is confronted with all sorts of difficulties, and we have full ground to choose the hearing procedure to define public interest. Simultaneously, this article also considers the agreement character of public interest and the hearing procedure; next, the author brings forward his own concrete and tentative plan on the construction of the public interest hearing procedure of our country. Its core argumentation is as follows: Firstly, the public interest hearing procedure of our country must comply with six basic principles; Secondly, we must construct a set of public interest hearing procedures suitable to our national conditions; Thirdly, the author has proposed some suggestions and reflections regarding how to carry out the public interest hearing procedure of our country; Fourthly, the author has proposed several basic tentative plans on the supervision system of the public interest hearing procedure of our country; Finally, this article conducts retrospection regarding the role of the public interest hearing procedure of our country in defining (realizing) public interest. The author believes that on the one hand, we must see the great function of the public interest hearing procedure, and on the other hand, we must also see the limitation of this function and cannot exaggerate it at will. We must realize that the justice realized through the procedure may be a kind of imperfect procedural justice. Moreover, we must understand fully the key reason why the administrative department plays a crucial role in defining public interest - - the realization of public interest must be based on a certain public will.The fifth chapter mainly cites the case of land expropriation to carry out demonstration analysis of public interest. This chapter may also be called the chapter of demonstration. First, we must make it clear that land expropriation must and can only take public interest as the goal. This part mainly discusses the reason why land has become an important object of expropriation, the power basis of land expropriation as well as the justified foundation for land expropriation. Next, this article conducts an in-depth analysis regarding how to implement the basic principles of public interest in land expropriation - - the principle of justified procedure, principle of proportionality and principle of fair compensation. Finally, the article discusses how to hold the public interest hearing procedure in land expropriation: Firstly, it identifies the principles that the public interest hearing procedure should comply with in land expropriation; Secondly, it considers how to make the main bodies concerned play their due roles; Thirdly, it analyses how to conduct preparatory work for the public interest hearing in land expropriation as well as several problems that should be paid attention to during the hearing.更多还原