On The Theory Of Balancing Of Interests In Modern Legislative Process

The essence of modern legislation is a negotiation process of the qualification, choice, integration and expression of interests. During the course of legislation, it is necessary for the legislators to balance the interests, which would deal with many theoretical issues. To study the issues more deeply and put forth the instructions for legislative practice, the author chooses this topic as the title of doctoral dissertation. This dissertation is completed under the serious instructions of my tutors. The topic of balance of interests in modern legislative process is an enormous theoretical sphere. This dissertation tries to construct the methodological system of balance of interests in modern legislation from the perspective of methodological individualism. The dissertation deconstructs the balance of interests in modern legislation from the aspects of positive, value and normative analysis, on the essential theoretical construction of balance of interests. The dissertation consists of seven chapters. The core content of the thesis is the followings: The balance of interests is methodology, which is a basic method and process formula of analyzing, comparing, balancing, abstracting and integrating interests on the foundation of the qualification of interests. The dissertation concludes that positive analysis (qualification of interests), value analysis (value judgment) and normative analysis (choices of interests) are the evolutionary aspects of balance of interests. The starting point of balance of interests is qualification of interests in legislation, at the same time which is not a value judgment but a pure factual cognition. Legislators should collect all the facts of interests, analyze them and make legislative decisions on whether and when to adjust them. Methodology of balance of interest claims that interest assessment should be made according to values. The dissertation advances the theory of legislative justice as balance of interests based on the pectination of western justice theories which can afford valuable directions. This theory deems that balance of interests just is justice in modern legislation.. The balance of interests means equity, the unity of coexistence and antagonism and the dynamic and static state. The balance of interests is equilibrium, which is balance and value equilibrium and institutional justice. The process of legislation is one of choice of interest. The methodology of balance of interests claims that the final result of balance of interests be determined by the choice of interests. The principles of choice of interests are equal treatment, value judgment, proportion, maximization of integrative interests and due process. This dissertation puts forward the model of choice of interests in order to complete value goal of balance of interests according to the normative analysis of choice of interests, which can unify the choice of interests and normative analysis, balance of interests, and adjustment mechanism of law. The followings is original content of the dissertation: 1. This dissertation puts foreword the balance of interests as legislative methodology, and analyze and prove it deeply so as to construct an autopoiesis theoretical framework. 2. The dissertation claims that the balance of interests consists of three evolutionary annalistic aspects including positive analysis (recognition of interests), value analysis (value judgment), and normative analysis (choiceof interests), which make it more practical in action. 3. The author brings forward the theory of legislative justice as balance of interests, which can afford the value direction for modern legislation, on the basis of pectination of western justice theory. 4. The author makes normative analysis of choice of interests, advances the model of choices of interests to complete the value goal of balance of interests, and then unifies choice of interests, normative analysis, balance of interests, and adjustment mechanism of law. 5. The author deconstructs the subtle relation between public interests and personal interests from the standpoint of individual methodology. The balance of interests as legislative method grasps the distributive function of modern legislation grounded on the basic idea of balance of interests, which can provide the theoretical weapon to complete the historic task of modern Chinese legislation. 1. The balance of interests is advanced as a legislative methodology, and the theory both concerns the construction of theoretical framework and emphasizes the practical value of it in modern legislative practice. Though the discussion isn't adequate, we believe that the theory of balance of interests as legislative methodology would help the construction of harmonious society in China. 2. The balance of interests consists of three evolutionary annalistic aspects including positive analysis (recognition of interests), value analysis (value judgment), and normative analysis (choice of interests), which accord with the practice of Chinese legislation. At the same time, the analysis can make them be the domain of balance of interests and construction of harmonious society and make them connect with each other organically. 3. The balance of interests puts forward the theory of legislative justice as balance of interests. The theory can afford definite directions for...