The Legal Balance On Conflicts Between Public Interests And Private Rights In Public Emergency

Public emergency is an endangered public safety emergency which happened suddenly, caused or might cause heavy casualties and property losses, ecological damage and serious social harm.Emergency against legalization is the choice that the human against the history experience and rational debate of emergency, is the system response which is in line with the internal laws of social development, is the common ideal which has been pursuing by the human society. It is unavoidable to response the conflict of public interest and'private rights In the public emergency, as the law is the institutional arrangements which adjust to the social relations, how to balance the public interest and private rights? How to constrain the public power against private rights in the public emergency so as to lead public power to balance the private rights and public interest? Although the answers vary, the critical path is inseparable from the precepts of the rule of law.Aristotle once said:"the rule of law should contain two meanings:the law has been set up obtained universal obedience; and everyone obeyed law should be the good develops law by itself " However, What is the criteria to judge the law as "righteous"? where is the basis of universal obedience? In the abnormal society which is caused by public emergency, The more important is how to balance the public interest and the private rights by relying on the rule of law to achieve in the traditional society and the dual structure of state, How to deal with public emergencies which harmed their own, but also to give legal regulation to the harm which abused by emergency powers? What is the principle to balance the conflict between public emergency and private rights? To solve these problems, I tried to give a theoretical explanation and response in this thesis.This article is expanded against the pre-literature,according to the main line on the "conflict-balance" of public interest and private rights in the public emergency, follow the path argument of " Questions→Analyze problems→Solve problem ", use all kinds of research methods which include concept defined, comparative studies, empirical analysis and historical study and others. In addition to the introduction and conclusion, the paper is divided into 6 to start:Chapter 1:The basic theory of the conflicts between public interest and private right in the public emergency. The main argument of this chapter is to analyze the basic concepts which the connotation needed, including its full-text content, extension, characteristics and classification, finish a sort of relationship between public interests and private rights, lay the post-theoretical basis for the text. Studies suggest that the public interest is concerned with the existence of the public, for the social uncertain public does not equal enjoyment, to meet the legitimate needs of the main social. Public and private law provides a perspective of looking into our legal rules system, its purpose is to highlight the independent and autonomous of private right, to prevent improper interference of state power. The relationship between public interest and private rights is dialectical, mutual antagonism, interaction, balance and unity, based on private law, public law priority habitat. The reason why the conflict insist between the two, because there is a conflict of interests, the public interest would be the realization of private rights, the solution lies in the balance between the two.Chapter 2:Experience of the balance of conflict between public interest and private rights in foreign public emergency. This chapter is a response to public emergencies abroad, the conflict balance between public interest and private rights in the history, used empirical analysis of cases at the same time, to provide extra experience for our country. Western has a long history of public emergencies, starting from the Roman system of authoritarian government, through the Middle Ages "Fortress Besieged state ", to the modern WarⅠand World WarⅡ,and the current national public emergency legislation, the development of clear structure, gradually rendering the trend of the rule of law, and have full public participation, a reasonable allocation of power and attention to protection of human rights characterized. Undeniably, both the United States, "9·11" after the National Security or the state of emergency in South Africa or the compulsory licensing of pharmaceutical patents, nuclear leak crisis management happened from 9.0 earthquake in Japan, are concealing the tension and conflict of public interest and private rights.Chapter 3:The view of conflict between public interest and private rights theory.This chapter focuses on theoretical dimension, analyze the relationship between public interest and private rights changes in different, stages of history, analysis of public interest and private rights for the domain to be explained from the perspective of normative. Studies suggest that, since the first Sixteen Century the ancient Qing Dynasty to the natural economy, private rights of the public interest went through a "comply-Attachment-Interactive" path. Basic Rights can be directly applied to state power and the private sector, human rights, basic rights can not be derogated in a state of emergency, and human rights principles featured the legality and legitimacy in public emergency response. The meaning, value, application of public interest, has many special forms On the Constitution:public interest must be regulated by law in the form; the public interest of course is not the priority logic, its ultimate fate is to protect civil rights; public Interests principle featured the dual function on moral guidance and the legal norms.Chapter 4:Reality on the conflict between public events and private rights in China. This chapter analyzed the legislative response to public emergency situation and development trend of the rule of law based on abroad experience, and made detailed analysis combined with cases analyze the conflict of public emergency between the public interest and private rights. First, public emergency response to the rule of law is a doctrine, but also a practice, and continue to be practiced and promoted in our country, reasonable structure has been formed, the system should improve the legal framework of public emergency; Secondly, the ideal state of homeostasis of the public interest and private rights is the reasonable control. the public interest has restrictions on the logic legitimacy of private rights in public emergency, there are also theoretical foundation and legal basis, but such restrictions must follow certain conditions and specification constraints, the balance of interests should be upholded. From the restriction's content, restriction's aim and limitation form etc, limiting the proportion of prudent.Finally, as "5·12" Wenchuan Earthquake, "SARS" and other cases for the empirical sample, analyzed the problems profoundly in responding to public emergencies in conflict of public interests and private rights, attempt to explain specific cases of conflict of public interests and private rights to run logic.Chapter 5:The balance of public interest and private rights in public emergency. On the one hand, this chapter describes public emergency in the public interest and the importance of balancing private rights conflict, pointing out that the dynamic balance and interaction between the two is the protection of public interests and private rights to maintain the common aspirations; On the other hand, analysis of the emergent public.Public interest and private rights in the event of conflict balance problems and constraints. Studies suggest that maintaining a balance of public interest and private rights is a political state and the common demands of civil society, human rights protection is the primary system of the modern value of the rule of law, even in times of public emergencies are no exception. However, our present, limited by historical, economic, cultural and political'variety of incentives, state power and civil rights in this "balance" has not reached equilibrium, public power is always biased towards one side, and then showing a "balance" out of balance Trend. Therefore, to balance both at the macro level, at the micro-regulation on the private rights of public interest and improve the legal system, the important task of balancing. But the other hand, legislation and practice of public emergencies in the public interest and private right balance conflicting legal concepts, rules, subjects, methods, coordination, etc. still to be improved, and legislation "blind spot" exists, the impact of traditional values and government Operating system and the lack of legal mechanisms for coordination of interests led to unexpected events such as the public interest and private rights in the causes of conflict.Chapter 6:The legal system improvement about conflict between public interest and private rights in public emergency. This chapter analyzes the public emergency in the balance between public interests and private rights conflict, the basic principles, specific system optimization and supporting institution building. Studies suggest that constitutional rule of law and human rights protection are the proper choice in the conflict between public interest and private rights. Based on the principle of universality, guidance, and specificity, that the rule of law, the principle of proportionality, principle of due process principles to judge the case, shall not restrict the fundamental rights principles and the principle of balance of interests is the adjustment of public emergencies in conflict of public interest and private rights The basic principles; for public emergency response and public interests and private rights conflict perfect legal system of balance, from the conflict of public interests and private rights system optimization and supporting institution building two levels of specific system design. The innovation of this article may:NO.1 The study of innovation.Through literature review found that the public interest more limited view of the current hot housing demolition, land acquisition, intellectual property and other fields, this article will spotlight various social context in the risk of public emergency in the public interest and private Conflict and the Law right balance. Existing studies are mostly from one event or one aspect of a private right angle cut, there were no system of public emergency in the public interest and private rights conflict and its historic sort of legal balance and thematic studies, This study selected topics on the perspective and deepen and improve the current frequent public emergency law should have some theoretical and practical value.NO.2 The research point of view and content innovation.First, the public interest reflected in the existence of systematic theory to explain. Despite the existence of public interest scholars questioned, but few scholars have given full attention and theoretical response. It is based on the lack of such research, the paper the existence of public interest to do a more in-depth theoretical exploration; Secondly, the "Emergency Response Law" enacted empirical analysis results, there is lacking the supporting system, right unreasonable allocation of power problems and propose possible recommendations for improvement; again, the right to pass from the right balance and perspective about the public emergency in the conflict in the public interest and private rights to be adjusted, is a certain innovative ideas; Finally, public emergency for the public interest and private rights in the conflict of the type proposed by the legal balance of interests of the measure, the supply of public goods in a reasonable relationship between the government and the market positioning of a variety of social norms and cooperative multi-body interaction and other emergency has some innovative propositions Innovative.NO.3research methodology innovation.Public emergency in the public interest and private rights can not be separated by the conflict and balance depend on the economic, political and social environment. This paper analyzes the public interests and private rights of use of the law and economics, sociology, political philosophy and other methods to demonstrate integrated; such as law and economics approach demonstrated the use of torture against terrorists, the costs and benefits and choice of law and human rights protection; rooted in the domestic and international norms of the typical cases of public emergencies, the attempt to gain experience in the test of practice; Another example is the use of the position of political philosophy and views of the meaning of public interest and the existence, validity issues, and sociology The definition of conflict and reflection, etc., the use of these methods may provide a clue for the Study.Definition and Further Research QuestionIn a sense, the public interest and private rights is to build the cornerstone of public and private law system, these are highly uncertain legal concepts, only to be public interest and private rights has been a very difficult matter, not to mention the sudden public event of its discussion of conflict and balance the system, if not a deep theoretical knowledge of reserve accumulation and intractable, in addition to public emergency and the inherent tension between the rule of law, but also demonstrates the difficulty of adding the selected topic. Based on the above difficulties, limited by my limited intellect, the argument there are still a lot of regrets on, and this is the future direction of further improvement and efforts. This lack of and need for further research in the following points:First, define the concept of public interest, no more detailed and comprehensive definition, the conclusion is worth scrutiny. Public interest research topic in the course of time the new indemnity, after the Millennium Sheng deposit is not bad, there must be an objective reasonable. But how to glimpse the nature of' public interest and the picture is definitely not happen overnight, there are similar public emergency in the balance between public interests and private rights of legal mechanisms, there are also studies how the design space, still need further analysis and research.The second is limited by my knowledge structure and language ability, civil law and common law on public emergency in the public interest and private rights conflict, studied under the law balance the lack of data may be limited to research vision, and make arguments to explain ZHOU force and convincing enough, this is the future should further strengthen the good direction.Third, suggestions universal to be improved. Both theory and logic, universal theory is difficult to extract, most of the theoretical knowledge more or less just a context, as Wittgenstein said, to describe the composition is difficult or impossible to appreciate as to describe his form, it must describe the whole environment. It is in this sense, this paper presents some of the suggestions are not universal for all public emergency. Suggestions have some selective application of the proposed so-called "system improvement" may be just a reference, worse still might not withstand the test of practice. This requires research in the future to gain more theoretical knowledge, the use of additional methodologies, documentation and data gathering more samples to improve the universality of the proposed measures.