The "Public Interest” Requirement In Eminent Domain On State-owned Land

In 2011,the Regulations on Taking and Compensating Houses on State-owned Land were promulgated,which made past-enacted Demolition Regulations consistent with the Constitution and introduced the most important “Public Interest” clause.The legislation finally excluded “commercial development” in “Public Interest” clause,leaving only “Urban Redevelopment” as a result of the legislative game.However,the approach of interpreting the public interest strictly is not compatible with the trend of social development,and the legislation has manifested many negative effects.Moreover,the deviation of practice stems from insufficient supply of theory and an unscientific understanding of public interest,which results in failure to draw the conclusion of a broad interpretation of public interest.Therefore,the paper tries to argue that it is necessary to recognize economic development takings as part of public interest and put forward a new theoretical thinking on how to discern the requirements of public interest.The article mainly consists of the following four parts:Part I: The part discusses the legislative evolution on requirements of public interest and the abuses of current law.With the purpose to discover the objectivities behind the legislation,this paper summarizes the stage divisions of the legislation on "public interest" related to the housing takings after the founding of the People’s Republic of China and concludes the core characteristics of each stage.However,the current law does not address well in discerning "public interest" requirements.On the one hand,the "Urban Redevelopment" clause was abused in practice.The costs of commercial takings was too high resulting in the slowdown of urban development.The current law cannot curb “government operation land” fundamentally.Therefore,strict requirements of public interest fail to alleviate the sharp social conflicts caused by takings.On the other hand,starting from the institutional dimension,the taking system is originally a tool to overcome market failures.There was no difference between private parties and government when facing various problems of market failure.The current law did not provide tools for private parties to overcome market failures.Part II: The part introduces the discussions and enlightenments on the requirements of public interest in the American taking system.The United States Constitution imposes the requirement of "public use" for eminent domain.However,it is controversial on how to explain "public use" in the American judiciary.With the issuance of a series of landmark cases,these cases manifest that the courts recognize the expansion of public interest.Although interest game and repetition take place in this process,it should be noted that the recognition of economic development taking,which is consistent with public interest,has become an irresistible trend.Part III: This part introduces new considerations into requirements of public interest,responding the need of reality.First of all,starting from the concept of public interest,this paper discusses the validity and characteristics the concept.Secondly,the paper discusses traditional methods of defining public interest,including semantic analysis,public goods and cost-benefit,and points out defects in the above-mentioned approaches.Lastly,the paper proposes a new method to understand public interest with the C&M Framework and classifies public interest from the perspective of transaction cost theory.Part IV: This part emphasizes procedural control over determining the requirements of public interest.First of all,from the perspective of legislative intents and lack of value judgments,National People’s Congress should strengthen its role in the recognition of public interest.Secondly,this paper proposes that the judiciary should only be responsible for reviewing disputes related to "compensation","taking procedure”,and "the necessity of excising taking".However,based on the notion of “Judicial Deference”,the judiciary should respect the decisions issued by the authority and should not review the issues substantially.Moreover,according to the analysis of the judicial practice,to some extent it can support the proposed power-allocation of the judiciary.