On Legal Definition of Public Interest in Public Administration of China(公共管理国际会议论文).doc

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1、On Legal Definition of Public Interest inPublic Administration of China1.DING Ke 2. ZHU Xiao-ning 3.WANG WeiSchool of Political Science and Public Administration University of Electronic Science and Technology of China, Chengdu, P.R China, 610054Abstract In order to further improve efficiency of adm

2、inistrating according to law and protect legal interests of citizens, corporations and other organizations, we should scientifically define public interest in the process of public administration. Absence of laws for scientific legal definition of public interest has caused administrators incapabili

3、ty of making scientific administration in the course of the administrative management, and led to some administrators infringing upon legal interests of citizens, corporations or other organizations under the seemingly legal banner of “Public Interests”.Key words Public Interest, Legal Definition, A

4、dministration Law, Improve Efficiency 1 Problems in Definition of Public Interest in Our Countrys LawIn over 2000 years history, our country is a governed by men rather than by law, for emperor in a feudal society has paramount power, law was always ended in front of the emperor, who called it an in

5、dividual interest, that should be an individual interest, and it should be public interest when the emperor called it a public interest. Therefore, in our more than 2000 years history, anything like public interest, national interest or individual interest have been mixed together in front of imperi

6、al power, and there was no individual interest for masses, everything belongs to the emperor, even including individual lives.After the emancipation, people have become leaders and host of themselves and the country, and they have certain political rights and right to property. But due to theres no

7、legal definition of public interest, some administrators will take advantage of their administrative power to issue some order and thus affects legal rights of citizens, corporations or other organizations in the name of public interest, especially with the influence of “extreme left” idea, some adm

8、inistrators will even use the name of public interest to violate citizens, corporations or other organizations legal rights.After the reform and opening-up, our country has started its “rule by law” process, and formulated a series of related law and regulation. And some of those laws and regulation

9、s have touched the concept of public interest, however, lack of definition of public interests quality, quantity, entity, procedure, private law and public law, static and dynamic, the concept of public interest is often abused and peculated. Some administrators, under the banner of “maintaining pub

10、lic interest” or peculating administrative power, violate citizens, corporations or other organizations legal rights.So what is public interest, after all? Our countrys law doesnt have clear definition of public interest, which has bring difficulties in how to administrate according to law and how t

11、o improve administrative efficiency. So, to solve the problem of public interest definition is a key to ensuring administration according to law and improvement of administrative efficiency.2 Definition of Public Interest Given by Western Laws“Public Interest”“PI” in short, was originated from the a

12、ncient Greece in 5th-6th B.C., where ancient Greek regarded public interest as a unitary abstract value necessary for societys existence and as the common target for all social members.Bentham, famous British jurist, thought one societys public interest is the sum of all individual interests in such

13、 a society. He pointed out: “community is an imaginary object and composed of those people who are called its members. Then, what is interest of the community? is the sum of all members interests in the community. Not understanding what is individual interest and then talking about common interest i

14、s is meaningless.” (1)He thinks, individual interest is the precondition and basis for common interest, and nation couldnt seek common interest at the cost of harming individual interest, on the contrary, nations target is to maximum promote public interest, thus achieving “happiness of most people

15、in the society”.In Bodenheimers opinion, the conceptpublic interest “means the insurmountable external boundary”. Such boundary refers to: the individual right scope in effect is the basic condition to improve public interest” (2). So we can see that Bodenheimer only gave us a principle definition o

16、f the scope of public interest. He thinks public interest is neither a simple sum of individual desires and requirements nor decision made by government authorities.Hayek called social public interest as general interest. In his view, “general interest is composed of targets of laws and regulations

17、in our minds, and is integrated abstract order. Such abstract orders target lies not in realizing known and specified result but as a tool survived for it is beneficial for people to pursue various individual objectives.”(3) James Harrington, who has the similar view as him thinks: “public interest

18、is the public right and justice removing any bias or private interest” and is equivalent to “the absolute ruling of law other than human”. (4)Over the question of what is public interest, different people hold different opinions. But no matter the result, peoples legal definition of public interest

19、should be that public interest is the whole population or most peoples interest and is the interest involving with national security and mass social peoples interests.3 Status Quo of Our Countrys Legal Definition of Public InterestSince the reform and opening-up, some of our countrys laws have made

20、certain definitions of public interest. But those definitions are all-superficial and never touch the core meaning of the concept.3.1 Constitution is our countrys fundamental law and enjoys supreme legal force. In our Constitution, the Clause 14 specifies: “to meet requirement of public interest, th

21、e nation can make expropriation or requisition on land and give supplement in accordance with laws”. And Article 3, Clause 13 stipulates: “to meet requirement of public interest, the nation can make expropriation or requisition on citizens private property and give supplement in accordance with laws

22、”.3.2 After the Constitution is our countrys basic law and we can also find definition of public interest in the basic law. Our countrys general provisions of the civil law, Article 7 stipulates: “civil activity shall respect social morality and shall not harm social public interest, destroy state e

23、conomic plan and disturb social economic order.” And Clause 5, Article 58 of the provision reads: “violate law or social public interest”. Our countrys Criminal Law, Article 20 specifies: “to protect national and public interests, individual or others lives, properties and other rights from current

24、damage, certain measures shall be adopted to check illegal damages and any damages or losses have been brought to the damage makers belong to self-defense and no criminal obligations shall be given.” And its Article 21 also specifies: “to protect national and public interests, individual or others l

25、ives, properties and other rights from current danger, person shall not make any responsibilities for any losses arising from emergency measures.” Civil Procedural Law, Article 268 specifies: “the activities not regarded as in breach of Peoples Republic of Chinas basic principle or national sovereig

26、nty, security and social public interest”. And Clause 2, Article 43, Peoples Republic of China Administrative Procedure Law reads: “and rescind the regulation requires non-harm to social public interest.” Peoples Republic of China Contract Law, Article 7 specifies: “shall not disturb the social orde

27、r and damage social public interest.” And its Clause 4, Article 52 reads: “damage to public interest.” And Clause 127 of the Law specifies: “supervision and investigation shall be imposed on illegal activities that utilize contract to endanger state security and social public interest.”3.3 Some of o

28、ur statues also involve the concept of public interest, for example, Clause 4, Article 24, Security Administration Punishment Regulations reads: “disturbing public order or swindling money by way of feudal superstition, when circumstances are not serious enough for criminal punishment”, and Law of t

29、he Peoples Republic of China on Administrative Penalty, Article 1 specifies: “the formulated in accordance with Constitution in order to protect public interest and social order, protect citizens, corporations or other organizations legal rights.” And its Article 62 specifies: “any activity causes c

30、itizens, corporations or other organizations legal rights, public interest and social order have been damaged.” And our countrys Land Administration Law and Interim Regulations of the Peoples Republic of China Concerning the Assignment and Transfer of the Right to the Use of the State-Owned land in

31、the Urban Areas also have relevant regulations. Clause2, Article2, Land Administration Law specifies, “to meet public interest requirement, the nation can requisite collective-owned land.” And in Item1, Clause1, Article 58 regulates: “to meet public interest requirement, the nation can withdraw the

32、right to use land.” And Interim Regulations of the Peoples Republic of China Concerning the Assignment and Transfer of the Right to the Use of the State-Owned land in the Urban Areas, Article 19 also specifies: “under special circumstances, the nation can withdraw the right to use land in accordance

33、 with the law in order to meet requirement of social public interest.”Besides laws and statues have involved the public interest concept, some local administrative regulations have some regulations concerning public interest. But the fact is that they just mentioned the concept and none of the laws

34、and regulations have made specific definition of public interest, which will easily lead to peoples misunderstanding about public interest.4 Outline of Public Interest Drawn up by Our Laws From above definitions of public interest by our laws and regulations, we can see that theres lack of definitio

35、n of public interests quality, quantity, entity, procedure, private law and public law, static and dynamic. To better define public interests scientific content, and better protect legal interests of citizens, corporations or other economic organizations, as well as improve public administration eff

36、iciency, we give following outline of public interests legal definition:4.1 Public Interests Qualitative & Quantitative DefinitionAnalysis on public interests quality is an exploration and is a question about what is public interest; and the analysis on public interests quantity is to count public i

37、nterest, and ensure it couldnt be enlarged and thus causing public interest to become more abstract.4.1.1. Public interests qualitative definitionAlthough public interests concept is abstract and unclear, people can have a general definition of its quality. So-called public interest should be a whol

38、e and masss interest and should meet masses value standard. Therefore, public interests value standard should be a general target of all social members. And we should oppose any views that think public interest can be replaced with national interest or most peoples interest.4.1.2. Public Interests Q

39、uantitative DefinitionThat is to determine and specify public interest, and ensure public interest couldnt be enlarged and let the concept of public interest become feasible. So, how to make Quantitative definition of the public interest? Firstly, to compare and make selection between public interes

40、t and conflict of interest on given standard in the course of conflicts of interest; secondly, in view of welfare economics, public interest can computerize welfares increase or decrease with social welfare function; thirdly, in economics decision-making process, multi-standard model can be used to

41、judge the public interests reasonability in economy, avoiding public interests random tendency.4.2 Public Interests Definition of Public Law and Private LawPublic interests definition of public law refers to government-led public interest definition, whereas definition of private law refers to marke

42、t-driven public interest definition. In lawful practice, people become more and more dependent on public interest defined by public laws and neglect definition by private laws, which inefficiency in public interest definition of law and lack of containing and checking of public interest definition o

43、f administration.4.3 Public Interests Static and Dynamic DefinitionIn terms of public interest definition, people often pay attention to static public interest definition and lack of dynamic definition, thus confining public interest in a narrow space. Under thus circumstance, people would give narr

44、ow definition of public interest, and with social development, peoples demands on public interest become more and more, so the definition of public interest should also be enlarged.4.4 Public Interests Definition of Entity and Procedure4.4.1 Public Interests Definition of EntityPublic interests defi

45、nition of entity should be conducted in following aspects: first, public interest should have public character of interest possession in terms of beneficial entitys scope; second, public interest should have unspecific character rather than few special group in terms of beneficial entitys target; th

46、ird, public interest should have long efficiency rather than a short-term effect in terms of beneficial entitys actual efficiency.4.4.2 Public Interests Definition of ProcedurePublic interests procedure definition is a major screen against administrative bodys abuse of public interest definition pow

47、er and is a measure to protect public interest definition procedures fairness. Now, public interests legal definition has neglected guarantee for procedure. No matter in the Constitution or Basic Law, there isnt legal definition of public interest procedure, even there is so-called public hearing pr

48、ocess, theres lack of specific guidance in actual operation, which leads to definition of public interest procedure is avoided and transformed in real practice.4.5 Legislative and Judicial Definition of Public InterestPublic interests legislative definition is a legal definition of public interests

49、content, attribute and scope; and public interests legal definition is judge and aid given by judicial organ to specific matters related to public interest. Public interests legislative definition is the basis for administration according to law, however, our country still leaves a blank in public interests legislative definition. Although many articles of laws and statues involve pubic interest, there isnt clear d