China's Public And Private Rights Of The Conflict And Its Solution

Apart from the introduction and conclusion, the paper has three chapters.In Chapter One, it introduces the concept of Public Right and expound it further through the comparison with Private Right. Public Right is one that is endowed by the government in accordance with the law and supported by the state force. It is compulsory and aims to facilitate the management of the public affaires and to pursue the public interest. Private Right, on the contrary, is one that the main body of the society owns in all aspects of social life. Public Right is compulsory, law-abiding and public-serving and unequal whereas fragility, arbitrariness self-interest and equal characteristic of Private Right. Public Right is the safeguard of the private right, but it is derived from the latter one. The two of them are contradictory unities which are interrelated and interactive and indispensable of each other without the Public Right. Private Right can not be attained. On the other hand, Public Right would have no basis and worth for its existence and could fall into the hands of the oppressors.In the Second Chapter, the conflict of the two is proved inevitable and irrespective of man's will power from three different perspectives: the origin of Public Right, the execution of Public Right and the right's protection by power. Then it exemplifies this conflict from legislation and execution of the law in China, including the over interference and the negative treatment of the Public Right to the other as well as the illegal infringement from the law making that violates the constitution.In Chapter Three, combining the analysis of the conflict between PublicRight and Private Right and its inevitability, the author put forward a systematic supposition to solve the problem. It contains three layers of meaning: First, publicize the ideas of "hallowed Private Right" and "Nomocracy" through mass media and systematic ,all-embracing education, which is initiated from children's education , in order to cultivate the perceptional knowledge of equality, order , social morality and the respect of law and others, as well as the specific education for law workers. Second, embody the idea of "hallowed Private Right" through legislation, that is to say , emphasize the two ideas in the Constitution , which is the basic law to protect people's right and the most authoritative measure of execution of the law, prescribingthat any practice goes against the Constitution is void, inclusive of law-making. At the same time , balance the different roles of Public Right and Private Right. There are six steps in order to achieve this: 1) to enhance the legislation of the protective law for Private Right. This means that to strengthen the protective power, legal right should be further recognized in depth and extend and the protective law-making should be practical. 2) To improve legislation supervision. That includes the amelioration of the AA supervision and the strict observation of the doctrine of judicial neutrality. 3) Private Right sovereignty should be respected where Public Right is not necessary. The details about the principles, conditions, extend and procedures of the application of the Public Right should be regulated by the law. So is the same with the remedy measure in event of some wrong is done. Otherwise, Private Right would be suffocated under Public Right and the development of economy and Private Right is affected. 4) the legalness of the origin of power should give its expression in actual situation. The government should prescribe the law as the only source of power. Any unlawful act of power is void including the illegal procedure ( fM )$ xi }￡) o Meanwhile, the violator should be demoted, his qualification as a state worker withdrawn, financial compensation demanded and criminal responsibility bored. 5) to emphasize the protective function of power. The free judgment( § S^icJl^O of power executors should be strictly regulated as to its principles, applicable conditions, and its scope. The power should give its protection when rights have been infringed under the circumstance that there is no relevant warranty of the law. What's more, this protection should be impartial and done in accordance with the ideals and spirit of the constitution and other laws. Private Right has its freedom as long as it doesn't come into the forbidden garden of the law. 6) A constitutional censor system should be prescribed in the law to ensure its effective execution and the constitutional government order. The author also put forward some of his opinion about the system. The third, from the angle of the execution of law, the idea of "hallowed Private Right" should be practiced in the field of administration and judiciary. In dealing with practical cases, law should be strictlyobserved to realize the law-govern society. In all, in executing the power, the executors should observe the idea of "hallowed Private Right. That is to say, he should not only be abide by the illegalness of power, but also execute free judgment( 自由裁量权) impartially and objectively in accordance with the law as to its limit, applicable conditions, procedures etc. He should be also careful and prudent with it. When there is no relevant law stipulation, he should resort to the law principles and spirit, public order, social custom, social justice and social morality. Thus, he is able to use the power appropriately and achieve the aims to protect Private Right.