On The Right Border

As the core of legal system, right is the basic value human pursuing. It is a substantive request in the civilized society, and has been the focal attention of the legal theory and other branches of law. In the process of Chinese nomocracy, people's awareness of right starts awaking, and the concept of right strikes root in the hearts of people day by day. In a sense, we are living in a society that advocates and publicizes right. While gratified with the awakening of people's right consciousness, we can't help pondering upon some special and typical cases, in which, behind right obtained in legal form, we can see the collision and conflict between public power and private right, as well as among private rights. To clear off the relation of various rights is the initial issue which a jurist should deal with, and also each legal person's mission. In the current paper, the author probes into the issue of right relations through the example of "the most persistent person who stubbornly resisted moving" that happened in Chongqing. This event presented to public a pair of contradictions—public power and private right—that we have to face up to. However, the balance and coordination of public power and private right is the ideal target of a country under the rule of law. Therefore, how to achieve a harmony between them when public power contradicts private right is an inevitable question in law. As a legal person, one should reflect on the event of in a sensible and rational way. There is no doubt that it let us see not only the perseverance in a citizen's right but also the law rationality of the public power sector. The significance of this event has extended to such an extent that the legal and social effect which reflected had gone far beyond the event itself. In modern society under rule of law, we should treat right seriously. In particular, in the face of Property Law whose promulgation has gone through so many twists and turns, we should be even more rational regarding this event, and more comprehensive in understanding the relationship between public power and private right as well as among private rights. Taking this event for example, the current study makes an attempt to the boundary's division of right from the angle of jurisprudence combined with related theories of right.The main body of this article consists of the following three sections:Section I, from the event to treating right seriously. On the basic facts of the event and focus of controversy, the author discussed public interest, and classified this event as the relocation of public welfare, and analyzed the legal relationship this event reflected. Then, this study examined this event from right's point of view, and explained it from the relations of public power and private right as well as among private rights. From point of view of the relations among private rights, the author analyzed the legal relationship between the developer and the relocated person, and between the removed and relocated person and the other removed and relocated people, and thus pointed out that we should treat right seriously in the modern society under the rule of law. This event indicated the advancement of the rule of law and the perseverance of citizens' right. To some degree, the final reconciliation of this event was a multi-win situation that was achieved through the advocation of private right and the patient intermediation of public power, and can be used for reference in subsequent similar cases. The event in Chongqing has demonstrated that the public rights show great respect to private right, and has also manifested the advancement of society and enhancement of the level of law in the following three aspects: the relocated person claiming his right, the developer coordinating patiently on the question of compensation placement, the government tolerating to block to the city reconstruction advancement. How to prevent private right from being abused, and how to balance and coordinate the contradiction between public power and private right is a question each legal person can not but ponder upon.Section II will make a theoretical review of right boundary. As theoretical basis in this study, this section mainly discusses from two aspects: on the one hand, whether right has the boundary, on the other hand, on the elaboration of that whether right has the boundary, firstly, the author what the boundary is if it has. Because definition is the logical starting point in investigating and solving any problem. Secondly, the article introduces right concept's seceral main theories, has carried on the limits to private right and public power, has obtained relation and difference between them. Finally, the article elaborates the reason of boundary between the specific right. Right is not abstract and exists isolated in the vacuum, but exists in floods the confliction of interest in the realistic society, receives restriction of social economic structure and the culture level of development. On the discussion of that what boundary right has, the article elaborates the boundary between public power and private right as well as among private rights and points out that right of citizens must be restricted facing public interest and right is exercised in the legitimate limit not harming other people's lawful right. In regard to this event, the perseverance that the head of household held to his right should be given affirmation, but his unreasonable request is not worth advocating. As absolute right would lead to absolute corruption, then what will absolute right bring again? Exercising one's right excessively will lead to unfairness. As the awakening of public awareness of right, especially the promulgation of Property Law, it becomes more urgent for forming healthy awareness of right, as public healthy awareness of right is the internal motion of modern society under the rule of law. In the rule of law society, the application to public power should be restricted within certain limits. The government must fully respect individual right, while private right should also yield to the social public interest, the function of private right is not endless.Section III, difficulties and challenges: how to define the boundary of right and establish the implementation mechanism of right. On the one hand ,the article has analyzed difficulties of right boundary to limit, because of limitation of human cognitive ability as well as language, the boundary of rights is to a large extent ambiguous. Right boundary is not similar to concept which can be so neat that clearly different. Which behaviors belong to the reasonable right scope, which to unreasonable right, which to apparently reasonable but not reasonable, that is not absolutely distinct and also not invariable. On the other hand, the article elaborates principles of right boundary to limit as well as the mechanism of right realization. The author tries to propose principles to define the boundary of rights: to define the boundary between public and private rights should be based on the principle of public interests; to define the boundary between private rights should be based on the principle of fairness, reasonable limitation, integrity, counterbalance of rights and intermediation. Finally, the author proposes to establish coordination mechanism of interests, thus people can obtain the maximum interests under certain conditions, that is, two-wins. To take this case as an example, the legislature should perfect the related laws so as to make the boundary of rights more and more clarified; the judicial authority should mediate between two parties promptly and effectively so as to make fair judgments. While pursuing economic benefits, the developers should take consideration of social benefits. Developers should give the relocated persons part of high profits from the removal projects as compensation. Thus, the relocated persons' resistance tendency can be gotten rid of, and both the developers and relocated persons obtain the optimal benefits. As for the relocated persons, they should keep reasonable to file interest lawsuits, which should confine the compensation items to the scope of loss. Taking this event as the turning point, let it enhance the awareness to the maintenance of public power at the same time of awakening people's awareness of exercising private right. Only by exercising private right in reasonable way can we secure the realization of public interest.