Public Interest In Civil Law

Although there's no exact definition of public interest in Chinese positive law, this concept appears frequently in Chinese legal texts. As civil law persists in private subject right standard, public interest in civil law has its unique value orientation, and civil law's way to achieve public interest is quite different from that of the other law. This article focuses on public interest in Chinese civil law, illustrating the two different levels that are used by its texts, trying to find out the meaning of public interest in Chinese civil law.The first chapter reviews the research findings of scholars both at home and abroad and discusses their revelations in understand and define public interest, then differentiate public interest with other related concepts. This chapter continues to analyze"public interest"that appears in Chinese civil law, then expound the characteristics of public interest in civil law and sort out these"public interest"by comparing them with overseas concepts that that are equal to them in function. Based on those works, this chapter advances that Chinese civil law use public interest on two different levels.The second chapter discusses public interest on the first level. Public interest on the first level equals to"public order and fair practice"or"public policy"in function. It sets boundary for Privatautonomie. Discerning public interest on this level requires a lower substandard, and its restriction on civil right is also lighter, so its public interest on a lower level. For its abstractness, generality and openness, typisierung is the most direct and effective way of investigating public order and fair practice. So this chapter employs typisierung to research public interest on this level in two legal systems, and makes brief comments on Chinese practice.The third chapter discusses public interest on the second level. In function, it's a special way of transforming real rights and could deprive ownership directly. Discerning public interest on this level requires a higher substandard, and its restriction on civil right is also harder, so its public interest on a higher level. Public interest on this level is very abstract, lacking operability but directly relating to real right transformation, as a result, many questions appear in society. This chapter aims at how to make this abstract concept into a practical concept and focuses on legal practice. The author studies these problems by analyzing foreign legal practices and comparing them with Chinese reality. At the end of this chapter, the author brings forward her own opinions on how to solve problems relating to public interest in China.