The Definition Of The Public Interest In Housing Expropriation

Public interest is an important concept in law theory, and it is always the targetof law pursuit to bring the public interest to come true for the law expert both homeand abroad. But as the concept of public interest is obscure and the benefit of it ishard to confirm, which makes the public interests an abstract and controversialconcept. There are different theories of it, take the theory of the number of the peoplewho benefit from the public interest for example, the representative of it is F-J.Numann from Germany. He puts forward the theory of uncertain majority, he advisesthat the measure of the majority depends on the number of the people. The publicinterest can be confirmed so long as the majority can benefit from it. The theory ofthe summation of the private interest regards the public interests as the summation ofthe private interest. Public interest bases on private interest, and aims to protect theprivate interest, the representative of the theory is Adam Smith. He believes that theprivate interest and public interest are conducted by an invisible hand step by step tothe harmonious and balanced trend, and this is the essence of the natural order.Another theory is the theory of boundary of private interest, which regards therelationship of the private interest and the public interest as a shift in boundary. Theachievement of the public interest tend to sacrifice (restrict or deprive) the privateinterest. This theory set the public interest against the private interest，and negligentits mutual promotion. It does not provide a definite concept of public interest too, anddoes not define the boundary of private interest. The theory of means believes thatpublic interest is just a means for the achievement of national interest, the nation mayexpropriate the house of the unit or private person for the purpose of keeping itsregime.The Constitution, the Real Right Law of PRC, the City Real Estate Law, theLand Management Law do not define the concept of the public interest clearly, whichmakes trouble for the administrative enforcement of law and judicial trial. The Ordinance of House Expropriating and Compensating on the State-Owned Land takesthe place of the Ordinance of the housing relocation on the urban land. The Article2sets:"The state may, for the public interest, expropriates or takes over the houses ofthe unit or citizen on the state-owned land for the public use, and pay justcompensation in accordance with the law. The Article relatively clearly defines thescope of the public interest for the first time, which protects the lawful interests ofcitizens from being violated from the local government, which tends to expand thescope of the public interest at its own will. But there are several defects in theOrdinance of House Expropriating and Compensating on the State-Owned Land, takethe8.5section for example,"the reconstruction of the concentrated dangerous housesand fundamental facilities of the old city distracts organized by the local governmentin accordance with the relevant regulation of The Town and Country Planning Act",the meaning of the concept of "old city districts" is too flexible, which may be usedby local government in the name of the "old city districts "for the purpose of publicinterest.During the process of the reconstruction of old city and city planning, therehappened several social mass emergencies caused by violent removing, whichconcentrated about the imbalance of the public interest and private interest. It is ofgreat importance to define the standard of public interest clearly. The author, throughthe method of jurisprudential, empirical analysis methods comparative analysismethod, will make collection of the fruits of the experts concerned both home andabroad, and by comparing the meaning of public interest and common interest,national interest, brings forward several advices to the definition of public interest.Firstly, as regard to the definition of public interest, interest collection, privateinterest abstracting, the author through the method of semantic analysis, will interpretthe meaning of public interest. Secondly, the author will make genre analysis on thepublic interest during the housing expropriating, and put forward the premise andmethod of the definition of the public interest, and put forward the definition in theangle of purpose, number, procedure and objectivity. Of course, the verbal provisionalone can not guarantee the law application absolutely right, further measures shall beadopted to solve the problem of understanding differences and legal loophole. On one hand, the legislative branch should interpret the meaning of the public interest in aunified way, the law itself has always been sluggish, the judger should take lessonsfrom the previous judgment; on the other hand, when the public interest and theprivate interest conflicts, the relative branches should adopt the procedure of hearingto guarantee the just and transparency of the dispute resolution, which is also aneffective way to reduce the social mass emergencies.