Research On The Public Interest Principle In The Constitutional Process Of Contemporary China

Interest problem is the focus of human life. Marx pointed that all human struggle for is related to their interests. There are several kinds of interests, among which the public interest is the important constituent of the whole interest system, for it can reflect the interest needs of the majority. Currently, with the formation of multi-interest system in the socialist market economic system, the disputes on public interest become increasingly serious: under the veil of extending the protection of public interest, private interest is gained while the actual protection of public interest becomes weaker and weaker. On one hand, the rights of citizen are easily injured in such situations, undermining the society-country harmony. On the other hand, public interest will get less protection, and then the harmony of the government departments will also be disobeyed. Then solving the public interest problem becomes a theoretical and practical subject in the construction of socialist harmonious society.There are several extensive views on the study of public interest. The traditional study, no matter from the view of politics or law, mainly regards public interest as one concept or idea. In this article, the author holds that public interest is not only one concept, but one principle of substantial law. The principle functions in the area of constitution, not only protecting public interest, but also respecting and protecting the fundamental rights of citizens. Therefore, on the basic of Marxist interest principle, the author applies both western and Chinese fundamental principles of public interest, combines law with politics and sociology, and comprehensively uses ways of group interest analysis and comparative analysis as well as historical analysis, tries to make study on the principle of public interest in the constitutionalism of China[0] from the view of constitution.in order to from the view of constitution make study on the principle of public interest in the constitutionalism of China, in order to explain the special meaning of public interest on the protection of fundamental rights of citizens, point out the major problem existing in the practical application, and then provide theoretical assistance to the effective application of public interest principle and the construction of harmonious society. Besides the introduction and conclusion, the article includes five chapters. And the main idea is as follow:Rule of constitution is the result of bourgeois revolution, including three elements, democracy, rule of law and human rights. Among the three elements, the protection of human rights is the core and value of modern rule of constitution. The classical author of Marxism do no apply the concept of rule of constitution directly, while, their theories extensively involve democracy, rule of law and human rights. Therefore, the development of Marxism rule of constitution is parallel with that of democracy and rule of law. The constitutionalism construction in western countries is different from that in China which shall reflect the organic unity of such three aspects as people being as masters of their country, leadership by the CPC and strict enforcement of the rule of law. The relationship between rule of constitution and public interest is that rule of constitution can provide system protection to the realization of public interest and is the best political option for the realization of public interest. Meanwhile, public interest is the value pursuit which rule of constitution is dedicated to, and is the arguments and basis for the legalization of government power application. Without the protection of rule of constitution, public interest can hardly be realized. On the contrary, without the protection of public interest,the running of government power will face the problem of legality. Among these, right protection is the inner content of public interest and rule of constitution.The meaning of public interest is inevitable in the area of politics, sociology, economy and law, and the scholars mainly possess different explanations on it. In the article, the author applies the point of uncertain public interest, and holds that the main type of uncertain public interest is the creative public interest, but not original public interest. The setting of public interest principle is reasonable in the rule of constitution, and the principle is the mutual supplement to the basic rule of democracy and rule of law as well as protection of property in the constitution. Public interest principle in the constitution possesses several specialties. in its meaning and enforcementwhich are as follows: Public interest in the constitution is not one extensive interest, its intension and extension should be regulated by constitution and law. The public interest principle in the constitution emphasizes the importance of compensation with the final object to protect rights of citizens. The priority of public interest is not the unique option for the constitution. And the application of public interest principle should be based on certain premises. In a word, although public interest principle in the constitution exists as the reason for the limitation to the basic rights of citizens, it has the inner meaning of protecting the rights of citizen. That is, public interest does not contradict with citizen rights. Contrarily, it can protect citizen rights to the highest degree. And this is the aim of realizing public interest. To set public interest principle in the constitution will have dual functions: moral guiding and legal regulation. The enforcement of this principle will limit the phenomenon of injuring citizen rights under the veil of public interest, and increase the harmony among social members, government department and country.Since public interest principle was set in the constitution in western countries 200 years ago, studying the principle and its implementation in western constitutionalism process, seeking the regularity absorbing the reasonable elements, overcoming the defects will give us great illumination on the construction of rule of constitution. The western public interest principle evolves from ancient Greece, to free and monopolized capitalism. And these theories set their own systems as Marxism, with some dissimilarities and certain succeeding relation to Marxism. The theory and practice of rule constitution demonstrate that, the implementation of public interest principle in the constitution is not a pure legalization proceeding, and it is always related to the detailed social and economic system with a country. Currently, there are 3 types of western social market economy formats: American free market mode, Germany social market mode and Japanese government leading market mode. These modes all combine with public interest principle in each constitution, and with different formations and running methods, make sure the implementation of public interest principle. Each western public interest principle has its own advantage, and the recognition of unconstitutionality reliability and the emphases on the procedural protection of public interest and the equal compensation will provide us great experience and reference in the practice of public interest principle in China. However, there exist great defects in the western economical mode on which public interest relies, which determines deems that its public interest principle mode cannot be perfect. Especially the defects on judging public interest will directly affect the effective enforcement of the principle.With the establishment of socialist market economic system, the constitutional purpose has been changed from countries-based to personal-based, or from the importance to safeguard national power to more respect and protection of emphasizing the safeguard of national power to more respecting and protecting civil rights in our country, at the same time, people's understanding to the meaning of the principle of public interest has been changed correspondingly. The absolute priority of public interest is the primary principle which solves the conflict between public interest and personal interest in the period of the planned economic system; this is challenged in the period of market economy.According to the Constitution stipulation in our country,"the need of public interest"is the cause to restrict the civil rights, but the content description in the Constitution is flexible and prudent. The clause10 and clause13 in the newly revised Constitution in 2004 makes only"the need of the public interest"as the reason that"may"levy and acquire acquisition land or private property of the citizens, in other words, when the public interest conflicts with the private interest, it can limit civil rights by the name of the public interest. However, this restriction is not necessary and the best choice. Public interest and private interest may be achieved respectively through other ways after the measuring of interests. In fact, in the modern country ruled by law, the public interest can not be the reasons which negated or even swallowed up the private interests. The personal interest should be subordinate to the public interest, but the process of subject should be an equal negotiation one. The view which asserts that the public interest inevitably leads to the achievement of the personal interests, and thus emphasizes the theory and practice of the absolute priority of the public interest is inconsistent with the spirit of the modern rule of law and does not conform to the provisions of the Constitution itself.The practical application of principle of Public interest in the field of the democracy system, law construction and protection of human rights shows that it has many problems in the aspects of the application subject, method, procedure and standard etc. These problems not only affected the function of public interest principle seriously and caused the abuse of public interest, but also enabled the citizens to made the citizens have the crisis of faith on the Constitution and the law. In addition to the limitation of this principle itself, the missing of constitutional authority, the impact of traditional public concept, the interest expansion of government department, the imperfect mechanism of the civil participation and the imperfect legal mechanism of public interest principle running are the important factors which impact on its implementation. So it proposed the measures to solve these problems from the general mentality and specific idea of perfecting the principles of public interest. The general mentality is the thinking from a macro perspective, including establishing the constitutional authority, remodeling the public idea of government, building the service-oriented government, improving the mechanism for the citizens participate and constructing the law operation environment of the public interest principles etc. The specific idea is the elaboration from the perspective of micro– perspective, including the way, means, process and standards etc. Of course, all above ways are not omnipotent and it can not be expected to solve all problems. But they are the conception of constitutionalism behind the principle of public interest. If they can be implemented, the principle of public interest will be able to play its due role in the process of building the socialist harmonious society.