A Study On National Interest From Legal Perspective

The national interest is a concept used frequently, either legally or in the international political and economic exchanges. However, for its specific connotation and denotation, different people have different views. From the view of the specific provisions of China’s existing laws, the notion of the national interest has both a profound connotation and an extensive denotation, which is used either in China’s external relations reflected as its state sovereignty, national security, national dignity, and its international images, or in China’s internal relations represented as its integrity, the stability of the regime, public orders, state-owned property and national economic development. The term is also easily to be confused with the concepts such as public interest, social interest, and social public interest, which crosses the borders of international laws&domestic laws, public laws&private laws, substantive laws&procedural laws. However, there has been no uniform interpretation so far for such an important legal conception, which has brought much confusion to the administrative law enforcement and judicial practice with regard to the national interest, and has further influenced the realization and safeguarding of the national interest. Therefore, a study on national interest in connection with its concept, value and system construction from legal perspective, has significance both in theory and practice.Many disciplines, such as Politics, Military Science, Economics, and the Science of Law have studied on the concept of national interest, among which, Politics has made a longer, more comprehensive and thorough research. As politics and laws constitute an important part of a country’s superstructure, interact with each other and connect closely, with the former playing a role as the basis and guidance of the latter, hence, teasing out the outcome of the study on national interest from political view, can consequently lay a firm foundation for the study of national interest from legal perspective. In Politics, the national interest is a core concept in international political theory. Although scholars of Politics debate much about the specific connotations, attributes and hierarchy of the national interest, it is generally agreed that the national interest, being an independent existing form of interests, comprises of not only material interests including survival and developing needs of the country, but also spiritual interests such as values, collective self-esteem and international order, the main contents of which can be divided into political interest of a state, security/military interest of a state, economic interest of a state, and cultural interest of a state.As a form of interest among others, the national interest has always been an important concept in China’s legal system ever since the foundation of new China. So far, the national interest and its sub-concepts exist widely in China’s constitution, laws, administrative regulations, administrative rules, judicial interpretations and Chinese-foreign treaties, with the connotations of which comprising of national sovereignty, national security, territorial integrity, national unity, the stability of the regime and the socialist system, public orders, public policies, state-owned properties, overall benefits, overall development strategies, national honors, international images, as well as the health of its people and other lawful rights. In the realm of China’s jurisprudence, the studies of national interest focus mainly on different law departments, with the perspectives stressing either on political attribute, property attribute or on social public attribute, which still remain controversial. The stylization of national interest constitutes an important part in the study of national interest, yet the jurists fail to classify the national interest clearly and completely. In this paper’s view, the national interest can either be classified into vital national interests and non-vital national interests according to the importance of the national interest, or be classified into positive terms, negative terms and neutral terms in accordance with its utility in the provisions of laws. Besides, it can also be classified into the intention or purpose of a behavior, the basis or principle of a behavior, the precondition or condition of a behavior, and the border or legality standard of a behavior pursuant to the function of national interest towards the legal act. Basing on the above classification, the author attempts to define the legal concept of national interest in the laws of China as follows:the national interest is the aggregation of the total material interests and spiritual interests satisfying the survival and developing needs of all the people in China. It includes not only the vital(substantive) national interests such as the state sovereignty, security, territorial integrity, political stability, sustainable development of the national economy, and the social public interest, but also the other secondary national interests such as national property, cultural interest and interest of values. The study on the stylization and concreteness of the national interest reveals the following inherent regularities of this legal concept:i.e., the coexistence of core national interests and peripheral national interests; the efficient combination of concrete national interests with abstract national interests; the unity of opposites between universal national interests and special national interests. Besides, from the perspective of historic evolution of China’s legal system, the laws are not only equipped with unique functions in the protection of national interest, e.g., the systematical classification of the levels of national interest, the definition of the border of national interest as a whole, and the regulation of the interpretation methods and safeguarding measures of national interest; but also show the following distinct characteristics:the unification of the compulsory norm with the authorizing norm, the coordination of the specific provisions with the principle provisions, the integration of the general rights and obligations with the exceptional provisions, and the fitness of the protecting systems of the substantive laws with the procedural laws.With the basic characteristics of universality, openness, stability and procedural strictness, laws have become an important means adopted by nations for social management and various social interest regulations. Each law department stresses on different level of interests and different structure of protection because of different aims, purposes and values the department shares, as a result of which, each department persists a different view of interests. The Economic Law is an important legal system for overcoming "market failure" and "government failure" in the modern market economy, whose fundamental purpose is to maintain the stability of the market structure, decrease the fluctuation of the economy, improve the economic efficiency, promote the sustainable, stable and healthy development of the market economy, and realize the balance, coordination and harmony among individual interest, social interest and national interest by means of macroeconomic control and market regulation. Therefore, the Economic Law has a complex point of view about the value of interests. It stresses on the protection of national interest and social overall interest, while protecting individual interest as well. From the ways the Economic Law protects the national interest, it includes not only the substantive laws, such as the Anti-monopoly Law, the State-owned Assets Administrative Law, the Finance Law, the Foreign Investment Law, and the Economic Criminal Law, but also the procedural laws matched with the implementation of the substantive laws, such as the laws of Civil Procedure, Administrative Procedure and Criminal Procedure. Besides, the protection of the national interest by the Economic Law not only reflects in the goals, the purposes, and the principles of the relevant substantive laws and procedural laws, but also embodies in the concrete regulations and rules of safeguarding national interest.The final objective of the study on national interest shall be for the theoretical perfection of its protecting system and the development of its safeguarding function. Since the protecting system for national interest in China’s legal system or even economic law system is too vast, the paper sorts out the regulation of mergers and acquisitions by foreign investors as a pointcut to explain the protecting rules and system function of national interest in it, for the convenience of empirical study. Foreign M&A is closely connected with national interest, which contains rather complex and plural relations for various interests. The US and Germany have elaborately made an institutional design and arrangement in the field of foreign M&A in order to protect their national interests in a complex interest structure. Recently, China has also made an administrative rule for the protection of national security interest. However, owing to the low level of the rule and its over simplification, the effectiveness of which for the protection of national interest is insufficient in practice. To intensify the protection of the national security interest in foreign M&A, China needs to. first, concretize as fast as possible the general regulations of "the Notice about the Establishment of National Security Review System Regarding Mergers and Acquisitions of Domestic Enterprises by Foreign Investors", so as to settle the problem of how to grasp the measure of natonal security review possibly arising in practice. Second, China needs to, basing on a long term strategy, establish a set of protecting systems for national security interest in regard to foreign M&A, by means of amending and revising the current "National Security Law", so as to constitute a perfect safeguarding system for national security interest. Apart from the above, during the draft and enforcement of the national security protecting system regarding foreign M&A, attention shall be paid to the balancing and coordinate protection between national security interest and other national interests, so as to safeguard the national interest on the whole.