Which clauses in administrative law refer to "public interest"

Public interest is a highly abstract concept, and it is also an important concept related to the national economy and people's livelihood. We can't give up the definition just because we are not sure. Specific to land administrative expropriation, administrative law based on public interests is not only the best way to protect public interests, but also the embodiment of constitutional principles. This paper points out that the system design of administrative law to protect "public interests" has both theoretical value and positive practical significance.

Keywords: administrative law protection of public interest administrative expropriation

China Library ClassificationNo.: D922. 1 Document IDNo.: A DocumentNo.:1009-0592 (2009) 02-063-02.

First, the status quo of public interest

"Public interest" is a highly abstract concept and an important one. Where there is human civilization, the existence of "public interest" cannot be ruled out. As early as ancient Greece, Plato pointed out: "All operational arrangements are for the object, seeking the interests of the object (the weak), not the interests of the strong." The ultimate goal of Comrade Jiang Zemin and Theory of Three Represents is the fundamental interests of the overwhelming majority of the people.

Paragraph 3 of Article 10 of the Constitution of People's Republic of China (PRC) stipulates: "The state may expropriate or requisition land and make compensation in accordance with the law for the needs of public interests". The revision of the constitution in 2004 was gratifying. What is commendable is that the fundamental law says in black and white that "citizens' legitimate property is inviolable" and "public interest". Regrettably, the Land Management Law and other supporting laws have not kept up, which has led to the shelving of "public interest" in practice and the contradictions in land administrative expropriation.

As we all know, public interest is an uncertain concept. In China, there are different opinions about what is public interest and whether to define the concept of "public interest". However, we can't give up the definition of it because of uncertainty. In my opinion, in the process of formulating and amending land management law and other laws and regulations, we should scientifically define the connotation and extension of public interest (something is better than nothing). Of course, no matter how clever the legislator is, it is impossible to accurately define the connotation of public interest and exhaust its broad extension. However, with a clear definition, in practice, authority can fully explain legitimacy. The law is inherently backward. Why is it not universal in "public interest"?

Second, the path choice of "public interest" protection

(1) The protection of public interests is specifically implemented by the Constitution.

The preface to the Constitution of People's Republic of China (PRC) points out: "This Constitution confirms the achievements of the people of all ethnic groups in China in the form of law, stipulates the fundamental system and tasks of the country, is the fundamental law of the country, and has the highest legal effect. People of all ethnic groups, all state organs and armed forces, political parties, social organizations, enterprises and institutions throughout the country must take the Constitution as their fundamental activity criterion, and they all have the responsibility to safeguard the dignity of the Constitution and ensure its implementation. " It can be seen that the constitution is the fundamental law, the foundation and core of the national legal system, the legislative basis of ordinary laws, the general charter of governing the country and ensuring the security, and the basic principle of regulating the operation of national life and social life. All state organs, political forces, social organizations and individual citizens must take the Constitution as the fundamental criterion for their activities. It is obviously not feasible to protect the "public interest" with the constitution, and of course it does not rule out the authoritative interpretation of the constitution.

(two) the protection of public interests can not rely mainly on civil law.

Max Weber believes that "one of the most important divisions in modern legal theory and practice is the division between' public law' and' private law'". Civil law is mainly to adjust the personal relationship and property relationship between equal subjects, which belongs to the category of private law. It is obviously inappropriate for a law in the category of private law to standardize a typical concept of public law. In the process of drafting the Property Law, there is a great controversy about whether to define public interest. Some people think that the restriction of public rights by private law is a godsend opportunity, while others think that the concept of public interest is an elastic clause similar to honesty and credit, public order and good customs, and should not be stipulated in detail in the property law. We believe that in the formulation of property law, we should consider both the "golden toilet" of the rich and the "water tank" of the poor, which is a great test for civil legislation, and there is no energy and no need to waste precious legislative resources on "public interests" that originally belonged to the research fields of public law such as administrative law.

(3) The choice of "public interests" protected by criminal law is also insufficient.

Article 2 of China's Criminal Law stipulates: "The task of the People's Criminal Law of China is to defend national security, the people's democratic dictatorship and the socialist system, protect state-owned property and property collectively owned by the working people, protect citizens' personal rights, democratic rights and other rights, maintain social and economic order, ensure the smooth progress of socialist construction, and fight and punish all criminal acts. "It can be seen that in the process of strict speculation on crime and punishment in criminal law, the fact that public interests have been violated has been established. It's too late to punish in criminal law.

(D) Administrative law protection of public interests

Public interest is the core and starting point of public law research and the cause of administrative power. "In fact, many concepts, rules and principles of administrative law are borrowed from private law from the general requirement of' public interest'." Professor ye bifeng's definition of administrative law is: "Administrative law is the sum of legal norms based on the relationship between public interests and personal interests to a certain extent." It can be seen that public interest is not only the object of administrative law adjustment, but also the purpose of modern administration, and it is also the basis for administrative law to become a departmental law. The specific administrative acts covered by administrative law are not only the main implementers of "public interests", but also the embodiment of the spirit of the Constitution. Therefore, administrative law is the best way to protect public interests.

Thirdly, the system design of administrative law to protect "public interest"-taking land expropriation as an example.

At present, the global economic crisis and food security are highly valued by all countries. How to protect cultivated land, standardize administrative expropriation behavior, limit public rights, and how to embody public interests in administrative expropriation are related to the success or failure of China's reform and opening up. The main topics of the Third Plenary Session of the Seventeenth Central Committee were established as farmland protection and agricultural sustainable development. It can be said that the protection of cultivated land is the top priority of "public interest" protection in China at this stage.

(A) the legislative acts of land expropriation

Locke once said in On Religious Tolerance: "Public interest is the standard and yardstick to test all legislation". The right to define public interest should be in the hands of the public, because only the people themselves know what their public interest is, and only the people should be the most authoritative decider of public interest; The best way for the public to decide the content of public welfare is to enact laws through people's representative organs or representative institutions, which is the National People's Congress in China. Because the content of "public interest" is extensive, it is obviously impossible to exhaust it in one law. Be specific to the case, so it is better to grasp. "Legislators should try to avoid using vague and abstract terms when stipulating the content of public welfare (especially when there is a power of attorney for public welfare authorizing administrative organs to implement public welfare), but classify and specialize public welfare, so that the public welfare content that legislators want to regulate can know its content, motivation and scope in legal provisions." When our induction is blocked, we can choose deduction. Instead of racking their brains to define the inexhaustible concept of the word "public interest", we should open our hearts, look at social practice, discuss one thing at a time, and implement the legislative spirit of the Constitution on "public interest" with administrative regulations. So as to accurately grasp the connotation and extension of "public interest". Take land expropriation as an example, if the public interest is taken as a specific matter on the horizontal axis and as a specific historical stage on the vertical axis. Then no one criticized the government's isolation measures in Sarah. In the process of urbanization, the correct coordinates of "public interests" such as the fundamental interests of the people pointed by the government's land expropriation behavior have jumped into our eyes. "Only when legislators inherit the constitutional concept in concept and emphasize the principle of' concrete norms' in legislative technology can the abuse of public welfare by state power be expected to be curbed."

(two) the administrative expropriation behavior must reflect the procedural justice.

As a derivative compound interest composed of personal interests, public interests and personal interests have internal consistency, but the restriction and derogation of personal rights that accompany them is an unavoidable practical problem. As some scholars have pointed out: "From the laws and regulations of all countries in the world, even in countries where the protection of private property is very comprehensive and complete, private property rights are not absolutely unrestricted rights. The state may expropriate private property for the needs of public interests. " This urges us to actively think about how to make this restriction or reduction just right, and then safeguard the legitimate interests of the administrative counterpart; Sunlight is the best disinfectant and preservative. Therefore, in the whole process of dealing with public interests, in addition to setting other necessary administrative procedures, administrative hearing procedures should also be mainly introduced to ensure the effective protection of public interests and the reasonable maintenance of citizens' property rights. Hearing procedure has a wide range of applicability and is the core content of the principle of due process of modern procedure. Its main contents are open and transparent procedures, public participation procedures and interpretation procedures. Specific to land expropriation, it is necessary to listen to the opinions of the expropriated administrative counterpart before expropriation, invite the expropriated administrative counterpart to participate in decision-making before expropriation, and put forward defense reasons, so that private interests and public interests can play a meaningful game, thus achieving a win-win situation.

(three) the judicial organs have the right to review the public interests involved in administrative law enforcement.

"Without relief, there is no right", so it is necessary for the court to review the legality of administrative acts related to "public interest" afterwards. The reality is that when the government exercises the conflict between expropriation right and private property right for the public interest, there are few legal remedies for citizens, and the protection of citizens' legitimate rights and interests by administrative litigation guarantee procedures is like a moon in the water and a flower in the mirror. The current "Administrative Procedure Law" does not include the administrative expropriation and administrative expropriation required by the public interest in the scope of specific administrative acts, which makes citizens lack legal basis when bringing lawsuits against the subjects of administrative expropriation and expropriation, and the courts often refuse to accept them on the grounds that they do not belong to specific administrative acts or the scope of accepting cases in the administrative procedure law. Administrative expropriation and administrative expropriation are generally administrative actions aimed at specific people and things, not "universally binding decisions and orders" of abstract administrative actions, that is, they are not administrative normative documents issued by administrative organs for unspecified objects and can be applied repeatedly. But it should belong to the scope of specific administrative acts. The administrative legal rights and obligations arising from the disputes between the administrative subject and the administrative counterpart in the process of administrative expropriation and requisition naturally become the object of administrative litigation. Otherwise, there will be serious consequences, that is, when the government illegally exercises the right of expropriation and requisition, citizens can't sue in court to safeguard their legitimate rights and interests, which is undoubtedly contrary to the basic concept of administrative law adjustment and protection of the legitimate rights and interests of administrative counterparts.