Public Interest Research

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.