Study On Real Right Of Public Used Public Property

Real right of public used public property system ("the system") plays a significant role in the human society all the time. The system had experienced from the ancient liberal state era to the welfare state era and then to the current system. The system proves developments of civilization and trajectory of rights protection in the human society. Comparing to public property used for official duties and juristic person for public interest, the public property for public use is key point of the public property system which is the core issue studied by public property academics worldwide and also fully demonstrates public welfare and public law natures of the public property system. The real right of public used public property is a concept on administrative law with respect to concept of real right of private property. It forms the co-existence of the public rights in public law and the private rights in private law, because of different natures of ownerships and subjects of the real right of public used public property. Scholars used to believe that the purpose of using public used public property was for public interest. However, the public interest was defined too broad to indicate correctly the aim for using the public property and was misunderstood and abused. For the first time, this article suggests that the fundamental target of using the public used public property is for protecting or improving public welfare and restructures the conception of the public used public property from the view of the public interest. As to the legal natures of the use right of the public used public property, this paper points out that subjective public rights opinions have not clarified essential attributes of the real right of public used the public property. Actually, the real right of public used public property represents composite human rights. This paper seeks to build up theoretical framework of the public used public property which includes the public used public property ownership, the rights of using the public used public property, the public used public property management, and the reliefs to the real right of the public used public property. The research proves its arguments in ways of comparative analysis, historical analysis and empirical analysis. The author focuses on the abovementioned issues and provides useful references to the researches of the real right of public used public property theory and the developments of administrative law.The full-text is divided into seven chapters of which the main contents are the following:The first chapter introduces the public used public property. The public used public property is logical starting point for researches on the public used public property law system. It is significant to establish the real right of public used public property theory. Researches on the public used public property reveals the essential characteristics of the theory that the public property should be used for public. This chapter concludes historical development of the public used public property system, explores the origin of the public used public property concept, and distinguishes definitions of the public used public property in China with conceptions by administrative law scholars in other countries and Taiwan region. The general academic acknowledgment suggests that the purpose of the public used public property is for the public interest, but the author insists that the public interest is defined too broad and abstract to illustrate essence of the public used public property. The fundamental purpose for establishing and applying the public used public property system is to protect or to enhance the social welfare, to achieve public well-being and human dignity. Therefore, the Chapter, from the view of social welfare and the public administration theory, redefines the concept of the public used public property. Meanwhile, the chapter discusses types of the public used public property, and analyzes development of new public used public property types.The second chapter concerns with basic principals of the public used public property. The public used public property is redefined in this chapter from the perspective of the social welfare. Comparing with the private property rights, this section makes a demonstration on the subject, the object, the type, the legal characteristics and the validity of the public used public property. This chapter discusses the principles of the real right of public used public property, raises legal principle of the real right of public used public property, the principles of public announcement and public credit, the principle of equality, the principle of legality, and the principle of proportionality. With regard to protection of the real right of the public used public property, the chapter proposes it needs legislative protection, administrative protection and also judicial protection. The differences between the real right of the public used public property and the real right of private property are discriminated. The chapter further argues that the public used public property right has both characters of public rights and private rights, right and power. The academics have various opinions to the real right of public used public property. They mainly hold public-law private-law division theory, ownership and actual management theory, welfare state theory, public administrative reform theory, and public trust theory and so on. However, the author believes that the fundamental theories of the real right of the public used public property involve public-law private-law division theory, public welfare theory, and public trust theory. The public welfare theory focuses on protecting and improving the welfare of public, and ultimately realizes the public freedom and respect. Therefore, the real right of public used public property is effective and efficient method that can achieve this. The author not only analyses representative opinions of the dual structure of the real right of public used public property made by scholars from mainland of China, but also comes out his own arguments.Chapterâ…¢deals with changes of the real right of the public used public property which include conditions and procedures of establishment, changes and termination of the real right of public used public property and their legal effects. This chapter separates the real right of public used public property into state-owned public used public property and private-owned public used public property. The author discusses different setting-up procedures and elements of theses two kinds of property rights and also explain unique characteristics conferred to the public property rights by law after its establishment. After that, in relation to houses acquisition and compensation issues appearing from the establishment of the real right of public used public property, this chapter demonstrates, bases on requisition rights of the real right of the public used public property, requisition rights to public property and institution of laws in the United States, France, Japan, and Korea. Finally, the author gives detailed legislative proposals concerned with requisition rights to property for the public use.Chapterâ…£relates to ownership of the public used public property. The scholars in the Western countries hold two types of theories which are monism and dualism to the ownership of the public used public property. The French scholars represent the monism. They believe that the ownership of the public used public property is part of the public rights; therefore, it should be governed by the public law. On the other hand, the Germany scholars represent the dualism. They urge that the public used public property ownership has features of both the public rights and the private rights. Thus, it should be dealt with by public law and private law. This chapter demonstrates the legal characteristics of the public used public property ownership, compares the public used public property ownership theories in France, German, and China, and, at last, the author raises his own conclusions. This section insists that the core issues to the real right of the public used public property is not who owns it, but should be who it is for or who is benefit from it and the state must carry out its obligation of managing the public properties. Therefore, the public used public property ownership is not a dominant issue in the theory of the public property rights. Finally, after the author discusses relevant laws governing the public used public property, demonstrates variety of the public property suppliers, he gives his legislative suggestions.Chapterâ…¤elaborates the right of using to the public used public property. In this chapter, the analyses concentrate on legal natures of the right of using public used public property. The right of using public used public property is kind of compound human right concerned with environmental rights, survival rights and rights of development. These three rights are internal needs to the public used public property rights. The right of using public used public property is based on natural resources and administrative supply from the state. The real right of public used public property rights are directly motivated by the people's happiness. It experienced from generosity from the state, the state's obligation to the people's public rights. Types of the using rights of the public used public property and the legal natures and contents of the using rights of the state-owned public used facilities are studied. The expansion of the using right of the public property which is also called the enhanced using right of the public property is compared with the using rights of the public property which is out of purpose. This chapter emphasizes important issues of the using right of the public used public property which is charging right to using the public used public property, and provides legislative suggestions with refer to real cases.The content of chapter VI is about administrative powers of public used public property. This chapter deal with the concept and the legal nature of the public used public property management, raises the view of the state's obligation, tells the similarities and differences between the police power to the public used public property, the police power for the public order and the administrative powers of public used public property. The Chapter referred to a typical case concerned with management of natural public used public property in the United States, Mono Lake case. The author argues that when the administrative entities apply the using right of public used public property, they should abound rule of Economic Development Preferential when dealing with conflicts of various uses of the public properties. Based on that, the author suggests on legal proposals on multiple-use standards.Chapter VII explores reliefs to the real right of public used public property. The chapter states that infringements from the real right of public used public property are infringements from administrative subjects or civil subjects and from public facilities. The reliefs to the real right of public used public property are reliefs to the public used public property ownership, and reliefs to the rights of using public property, and reliefs to the public property management. Thus, a better system of real rights reliefs of the public used public property may build up. The relief of the real right of the public used public property is different to the administrative reliefs and judicial reliefs. With respect to the judicial reliefs, the chapter induces concept of public interest litigation, and forms a system based on three judicial reliefs which involve administrative litigation, civil litigation, and public interest litigation. With regard to state compensation for damages by public facilities, this chapter compares the theories in France, Germany, the United States, Japan, South Korea and Taiwan region, and discusses opinions by the Chinese academics. The Chapter explains on scope, criterion of liability and elements of the state compensation for damages by public facilities. Finally, the article refers to the public facilities damages in Nanjing High Way case, and emphasizes defects in management of the public property and that the state compensation should be applied to damages by the defective management.