On Restrictions To Private Rights For Public Interests

It goes without saying that the freedom of civil rights should be the key principleof civil law, however it is also necessary to limit such freedom with compulsorynorms properly in order to promote public interests. Regarding to the special meaningof property to individuals, how to keep the free space of ownership under the scope ofpublic interests promotion is a central issue. The supporting theory of properrestrictions on ownership is that ownership should be enjoyed with social obligations.From protecting the absolute freedom of ownership to admitting that ownershipshould be used in a way of promoting public interests, the background of this changeshows the turning of social life and the changing of philosophy of rights caused bysuch turning. Article13(3) of the Constitution goes as follows:”In the demand ofpublic interests, private property can be expropriated under law with compensation”,which means if the government want someone’s property, it must goes withcompensation. However, limitations on ownership are far more than mereexpropriations, and those limitations will not be followed by any compensation to theowner. This kind of situation may actually hurt private property in a much worse waybecause if compulsory norms set limitations improperly, private interests will bedamaged without any compensation. Current researches on ownership protectionagainst violation from authority are focus more on public takings, but less on thelimitation of private rights, in which area rights could be more easily to be violatedsilently. Recent practice shows that the restriction of ownership has already been acrucial area in which public interests and private interests as well as public authorityand private rights are conflicting. On one hand, the ownership of private propertymust be effectively protected and public authority can not be abused; however on the other hand, private rights can not go without any restrictions or it may hurt the interestof public or third party. This is a topic about how to deal with the freedom andrestriction of ownership with appropriate degree.There are several occasions in our social life that over restriction on ownershipexists, and the owners whose rights have been violated by such restrictions can not becompensated within the current protection system. The causes of such situation can betraced to theories, ideas and the construction of protection system in China. Thisdissertation will focus on over restrictions of freedom of ownership in reason ofpublic interests, and by analyzing the cause of such problem, try to find out approachof improvements. The aim of improvement is to protect public interests as a whole onone hand, and fully respect and protect the freedom and safety of private rights inorder to avoid the over sacrifice of private rights on the other hand. This will ask forcompromises among different interests, self control of public authority and theconstruction of a better protection system. This will positively affect the stability andsafety of economy, and by proper setting of interests and burdens, achieve theharmony of efficiency and justice.Chapter one will start by focusing on the performance of public interests incurrent legal system, especially where it is considered as the justification ofrestrictions to ownership. Those compulsory norms will be classified by the way howthey affect private property. Then several cases will be given to reveal that suchcompulsory norms may have caused over restrictions to ownership, which can bequalified as violation to private rights by authority under the name of public interests.Chapter two will try to dissect the reasons of such over restrictions which arementioned in the first chapter in depth. Basically there are two types of reasons on thisproblem: one is the theory as well as idea and the other is the current right-remedysystem. The first problem with idea is that the traditional way of social management isrelied on restrictions and this means the public authority prefer to achieve public goalswith compulsory norms and lack of the awareness of self-restriction; additional to this,the freedom of private rights is not strongly rooted in people’s idea of rights, whichallows those over restrictions to be existed. The second problem on the aspect of theory is that how to define and clarify “public interest” is still stay in vague, which isquite crucial to practice because normally “public interest” can justify restrictions toownership, and the clarification of public interests will significantly related to thejudgment of whether private rights should be sacrificed. Problems of current legalsystem are the legislative oversight and lack of remedy. The problem with legislationis that even though restrictions of ownership have been commonly used, the structureof property right is still lack of the state of ownership limitation in law, and theregulatory takings has not been written in law by now. The problem with rightprotection is that we still don’t have an efficient remedy for those rights which aredamaged by over restrictions, and the judicial system has quite limited function onthis situation.Based on the analysis of reasons in chapter two, chapter three and four will try togive solutions.Chapter three will focus on the improvement of theory and idea. First of all, withthe respect of social obligation of ownership, reaffirm the importance of freedom ofprivate rights and try to keep the balance between private interests and public interests.Secondly, try to give operable clarification of public interests. By following theapproach that public interest should be settled to personal fundamental rights, clarify“public interests” by type in law and control the recognition in practice bywell-designed procedure. Thirdly, emphasize the importance of the principle ofproportion in legislation as well as judiciary, especially when it comes to the choice ofsocial management tools as well as the balance of private and public interests incertain cases. The requirement of proportion can not only helps the self restriction ofpublic authority and the made of proper compulsory norms to avoid over restrictions,but also offers judges a relatively objective standard of value measurement inindividual cases.Chapter four is basically dealing with the problems existing in legislation andright-remedy system. On legislation, the first improvement is to complete the structureof property right with limitation of ownership in Constitution in order to givefoundation to restriction norms and right protection; the second improvement is to admit regulatory takings in civil law in order to compensate the owners effectively.On judiciary system, the explanation of those norms needs to be normalized; thescope of judicial review needs to be expanded in order to eliminate the unavailabilityof remedies; and last but not least, introduce the effect and value of fundamentalrights into the protection of rights, and by learning from foreign judicial practice,consider to build a multi-level remedy system for rights protection in the future.