【作者】 范振国；

【导师】 黄文艺； 郑成良；

【作者基本信息】 吉林大学 ， 法学理论， 2010， 博士

【摘要】 在世界上许多国家、地区的法律文本中,在中外众多学者的理论研究中,在许多普通民众的日常生活中,公共利益总是频繁出现,很少有人觉得它陌生,但它到底为何物却总是扑朔迷离。对于公共利益,立法难以将其清晰呈现,学者对公共利益的理解也是见仁见智,普通民众对其更是充满疑惑。正是因为公共利益的抽象和模糊,一些个体、团体、企业、公权力机构(人员)等主体动辄打着公共利益的名号实施侵犯他人合法权利的行为。现实中种种公共利益被滥用的情形激起了人们对公共利益的质疑,也引发了学者们对公共利益的理论关注。公共利益到底是什么?公共利益到底应该由谁界定?可以说,公共利益的界定问题,包括其内涵和外延的界定以及界定主体的问题是面对公共利益时首先要解决的问题。同时,在公共利益得以界定之后,公共利益是不是就可以限制个人权利、是不是就可以任意地限制个人权利,即公共利益限制个人权利的正当性以及对限制个人权利的公共利益加以限制的问题也同样需要得到充分的关注。总之,只有公共利益的界定和限制问题得到了有效解决,公共利益才不会成为个人权利屡受侵害的借口,真正的公共利益才会顺利实现。更多还原

【Abstract】 Public interest, an enigma concept. Although concrete expression is different, it is regulated in many countries and areas. Many scholars have devoted much passion to it and study it extensively and furtherly from different angles. But public interest promblems are not solved because of law regulation in different countries and areas as well as in scholars’theory study, they even become worse and many problems emerge. This results from the limitation on the understanding of public interest, which is reflected in the legislation such as the regulation of public interest is too abstract to be applied, or the regulation is concrete but limits the sphere to be applied, and also reflected in the scholars’theory study in which public interest is different in different scholars’eyes. At the same time, it is also because some individuals, companies, groups, public power institutions (officials) invade other’s rights under the guise of public interest. Faced with such puzzles and doubts in practice and theory, some scholars even question whether public interest exits.Then, is there public interest on earth? If there is, what is public interest? By whom should public interest be defined? Does public interest has the legitimacy to limit individual right? How should public interest be limited which limits individual right? A study on legal defining and limitation of public interest should answer the above-mentioned questions.This thesis consists of five charpters.Charpter one is about the study on whether public interest exists. Some scholars think public interest mentioned usually by people is not objective and certain, or think the so-called public interest is the final result of competition among different interested parties, or think individual interest can not be assembled to be public interest mentioned by people, so that they think there is no public interest at all. While we should not reach the conclusion that there is no public interest just because of the above-mentioned reasons. The three angles, the category essence and social existence of human being, pulic demands of human being, individual insufficiency to satisfy public demands of human being, demonstrate the real existence of public interest.Charpter two is about the study on the connotation and denotation of public interest. After answering the points which deny the existence of public interest and demonstrating the objective existence of public interest, the definition of public interest , including connotation and denotation of public interest, should gain enough attention. As for the connotation of public interest, six typical theory models are of help in defining the connotation of public interest, such as the semantic analysis model, the aggregation of individual interests model, the common interest model, the result of competition model, the value theory mode, the reversion exclusion model. On the basis of absorbing and learning from the existing theories that define the connotation of public interest, a descriptive definition of public interest is a meaningful endeavor: the subject of public interest is unspecific and in the majority, public interest can be turned into individual interest, and the interest is common in which the interest is not divided, not exclusive and not competitive. As for the denotation of public interest, public interest should not be confused with national interest and social interest, public interest is the broader concept of national interest and social interest, and public interest includes national interest and social interest. At the same time, Pound’s theory about the public interest which mainly focuses on the political aspect and the social interest will help us to understand national interest and social interest. While it should be worth noticing that the public interest in Pound’s eye should not be confused with the public interest often talked about by people.Charpter three is about the study on the subject that defines public interest. After talking about the connotation and denotation of public interest, one problem should be noticed: Who can define public interest? After all, that what is public interest is relavent but not the same to that who can define public interest. The reasons that the legislature, the judiciary or the executive is choosed to define public interest should be analysed, which then should be also evaluated by reason.Charpter four is about the study on the legitimacy of limitation of public interest on individual right. We can often see the similar expressions in the law versions of different countries and areas in the world and in many scholars’study that for the sake of public interest (or public purpose, and so on.), individual property can be taken over or requisited. Why does public interest become the reason that individual property can be taken over or requisited? We can say the important problem that the legitimacy of limitation of public interest on individual right has not caught scholars’enough theory attention. The legitimacy itself should be clarified and the legitimacy of limitation of public interest on individual right should combine with the approaches when the legitimacy is talked about. The legitimacy of limitation of public interest on individual right is not inevitable, because the charm and tradition approach have faded, so the legitimacy of limitation of public interest on individual right should come from the real consent of the right owner, the real consent should be fulfilled in the just process, and the just process should be the just process in light of law. At the same time, we should distinguish legality from legitimacy and reflect the just process in light of law.Charpter five is about the study on limitation of public interest that limits individual right. After discussing the legitimacy of limitation of public interest on individual right, limitation of public interest which limits individual right should also be noticed, which is the discussion of limitation of public interest, the discussion of the principles through which public interest can be realized, and also the discussion of protection of individual right. Limitation of public interest that limits individual right should abide by three principles: the due process principle, the proportion principle, and the just compensation principle. In order to be in response to the practical problems in realizing public interest, the analysis in this part goes on under the real circumstance in our country. Firstly, the problems and counter-messures in the realization of public interest in our country are discussed in view of the due process especially the hearing process. It points out that the phenomenan should be changed that the executive dominates the definition and the realization of public interest. The real role of the links in the hearing process, such as pre-notice, inquiry, argument, and decision-making according to the hearing record should be paid enough attention to. In the hearing process, the legislature should participate in and democratically supervise the defining of public interest, methods that public interest limits individual right, and the compensation to individual in line with law, which should combine with the legalization and specification of public interest function of the legislature. At the same time, the judiciary’s judicial remedy function should play a role in realizing public interest, of course, the perfection of the judiciary remedy function in our country relies on the real building and continuing perfection of the judicial review system in our country. Secondly, limitation of public interest that limits individual right should combine with the proportion principle which includes the appropriation principle, the necessity principle, and the proportion principle in a narrow sense, and these three principles should play their roles in limiting and realzing public interest as a whole. Thirdly, the four dimensions of the just compensation principle should be noticed. As for the significance of the just compensation, can individual right be protected only the just compensation is realized. As for the sphere of the just compensation, the direct damage and indirect damage, the tangible and intangible damage of the right owner that is limited by public interest should be compensated, and such protection level should goes to the protection of the living right. As for the evaluation of just compensation, the impartial and objective evaluation is very important. As for the time of the just compensation, the compensation in advance is the basis that must be complied with.更多还原