The Limitation Of Public Interests To Private Interests At Administrative Law

Public interests is of importance at public law, especially at administrative law. Because of the close relation between the public interests and private interests, and that the public interests embodied predominantly through private interests, with the public administration extending continually, the danger of infringement of the private interests and the rights of citizens increases. In this sense, to establish the standard of public interests at administrative law and regulate the act of the limitation of public interests to private interests become necessarily an important question in theory and practice.Latterly , by the opportunity of the amendment of Constitution and the enactment of the Bill of Property Rights, the scholars have made a overall investigation and studies in many viewpoints, and got to a common view on some important problems, including concretely: public interests exists, it is a starting point for the public regulation , public service and the public order; public interests comes from private interests, but they are different, pubic interests and private interests have either the consistency or conflicts; public interests is either a theoretical conception or an uncertain legal concept at administrative law, the limitation of public interests to private interests should be accordance with legally retained principle, proportion principle, due process principle, and so on. But the scholars have not got to a common view on the deep theory of the relation between public interests and private interests. The main problems include: whether the methodology is the wholism or the individualism on which we study the public interests? Whether the public interests come from and surpass private interest? Whether the only object of administrative law is to improve public interests. whether we can exclude the private interests from the protective scope of the administrative law? As an uncertain concept, whether the "public interests" is decided by the discretion? Whether that public interests can limit private interests means that public interests principle give priority to the private interests principle? How to understand the point of different views about the relation between public interests and private interests? How to appraise rightly the theory on the public interests taking priority and the theory on the public interests being basic? What is the logic that public interests limits the private interests? What kind of principles and rules we could place restrictions to private interests because of public interests by legislation? What is the core procedure during the process? How to face up with the condition which the two kinds of interests mingled with each other? How to read rightly the word of "need" in the sentence "for the need of the public interests"? what is the basic theory on which the limitation of public interests to private interests is ought to be reviewed by the judicial ?Through studying the problems above, the author think that the study of the public interests should be based on the individualism methodology: public interests is the complex of the private interests and embodied through legal form and procedure which bases on the common need of the uncertain many administrative relative person, and which is concerned with the administrative relative person directly. Public interests is not different from the private interests in essence, it does not go beyond the private interests. Both the staring point of administrative law and the ultimate end are to protect the private interests. We can not exclude the private interests from the scope of the administrative law. The uncertainty of the "public interests" does not mean that the administrative subject have the discretion. The possibility of the limitation of the public interests to private interests at administrative law does not mean that public interests is ought to take priority, the error of the theory on the public interests taking priority and the theory on the public interests being basic lies in the exclusion of value measurement between the public interests and private interests. The limitation of public interests to private interests by legislation must be depended on the value measurement, it must comply the legally retained principle and make the principle concrete as far as possible. We can not avoid the condition of the intertexture of the public interests and the trade interests, we should persist in that "for the interests of most people and the least harm to the lest people". The coral content of due procedure of limitation of the public interests to the private interests is the exposition to "limit cause", the legal connotation of the "need" in the sentence "for the need of the public interests" depends on the observance to the proportion principle. The theoretical basis of the judicial review to the limitation of public interests to private interests lies in that the affirmation about the "for the public interests" belong to the "legal component part" on limitation to private interests, but not the "choice of the implement effect". Through the studies above, the author try to offer the legal standards of the limitation of public interests to private interests in the process of the legislation and the implementation of the administrative law.The paper focus on analyzing the public interests from the viewpoint of the legal theory, combining the positive analysis on the legal norms about the limitation of public interests to private interests at administrative law of China, we put forward directly the theoretical interpretation on the limitation of public interests to private interests of administrative law of China and my own opinion to some vague problems, by which the enactment and development of the administrative law could be guided, making the limitation of public interests to private interests regulated well and public interests serve the protection of the private interests truly.