公共利益的界定及立法表达
发布时间：2018-10-14 10:46
【摘要】： 法的功能之一在于能够给人们提供一种预期,这就需要法律必须具有相对的稳定性和确定性。法律概念作为构成法的基本要素之一,其内涵与外延的确定与否直接影响着涉及此概念的法律规范能否按立法者的意志和精神很好的贯彻执行从而形成一种明确的预期,真正地起到规范公民行为、调控社会矛盾的作用。由于宪法上对公共利益的明确规定,公共利益已然成为我国法律体系中的一个重要概念。但由于目前的法律规范和司法解释没有对公共利益作出丝毫的界定和解释,学界也没有一个统一的认识,这在某种程度上导致了公共利益的虚化;而与此相对应的则是公共利益在社会中的广泛使用,其内涵和外延被无限扩张,公共利益与私人利益、政府利益等模糊难辩,导致了公共利益的泛化。因此,对于这样一个社会生活语境和法律语境都非常重要的概念必须作出一个基本的界定,明确其内涵和外延。 本文在写作的过程中通过语义分析、比较研究和历史研究的方法对公共利益的界定主要从以下几个方面来展开: 第一部分主要论述公共利益作为重要的法律概念进行界定的必要性和可行性。第二部分主要从主体和内容两个方面对公共利益的受益主体和利益内容进行详尽的法理分析,在此基础上将公共利益界定为具有开放性的共同体所享有的表现为公共产品、公共服务和公共权利等为内容的好处。第三部分重点阐述公共利益的主要特征公共性、非盈利性、客观实在性、发展性以及层次性。第四部分运用比较分析的方法对公共利益与相关利益进行辨析,尤其是对公共利益与个人利益、公共利益与国家利益进行祥尽的辨析。第五部分主要论述公共利益界定理论的立法表达。从我国的实际情况来看,中央权力机关即全国人大及其常委会通过立法的方式对公共利益进行界定最符合中国现行权力体制也是最可行的。立法不仅要通过概括加列举的方式对公共利益的内涵和外延作出界定,同时还要规定认定主体及程序,公共利益与相关利益发生冲突时的处理原则以及当公共利益侵害个人利益或者公共利益受损时的救济途径。
[Abstract]:One of the functions of law is to provide people with an expectation, which requires the relative stability and certainty of law. As one of the basic elements of the constitution law, the determination of the connotation and extension of the legal concept directly affects whether the legal norms involved in this concept can be carried out according to the will and spirit of the legislator, thus forming a clear expectation. Truly play a role in regulating civil behavior and regulating social contradictions. Public interest has become an important concept in the legal system of our country because of the explicit stipulation of the public interest in the constitution. However, the current legal norms and judicial interpretations do not make the slightest definition and interpretation of the public interest, and the academic community does not have a unified understanding, which to some extent led to the public interest of the virtual; The corresponding is the widespread use of public interest in society, its connotation and extension is infinitely expanded, the public interest and private interest, government interest and so on vague and indisputable, resulting in the generalization of public interest. Therefore, for such a social life context and legal context are very important concepts must make a basic definition, clear its connotation and extension. Through semantic analysis in the process of writing, The definition of public interest is mainly carried out from the following aspects: the first part mainly discusses the necessity and feasibility of defining public interest as an important legal concept. The second part mainly from the main body and the content two aspects carries on the detailed legal theory analysis to the benefit subject and the benefit content of the public interest, and on this basis defines the public interest as the public goods which the open community enjoys. The benefits of public services and public rights, etc. The third part focuses on the main characteristics of public interest, public, non-profit, objective reality, development and hierarchy. The fourth part uses the comparative analysis method to distinguish the public interest and the related interest, especially to the public interest and the personal interest, the public interest and the national interest. The fifth part mainly discusses the legislative expression of the public interest definition theory. From the actual situation of our country, it is most feasible for the central power organ, the NPC and its standing committee, to define the public interest by way of legislation, which is in line with the current power system of China. Legislation should not only define the connotation and extension of public interest by means of summing up and enumerating, but also stipulate the subject and procedure of identification. The principle of dealing with the conflict between public interest and related interest and the remedy way when public interest infringes on individual interest or public interest is damaged.
【学位授予单位】：西北师范大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D90
本文编号：2270216
[Abstract]:One of the functions of law is to provide people with an expectation, which requires the relative stability and certainty of law. As one of the basic elements of the constitution law, the determination of the connotation and extension of the legal concept directly affects whether the legal norms involved in this concept can be carried out according to the will and spirit of the legislator, thus forming a clear expectation. Truly play a role in regulating civil behavior and regulating social contradictions. Public interest has become an important concept in the legal system of our country because of the explicit stipulation of the public interest in the constitution. However, the current legal norms and judicial interpretations do not make the slightest definition and interpretation of the public interest, and the academic community does not have a unified understanding, which to some extent led to the public interest of the virtual; The corresponding is the widespread use of public interest in society, its connotation and extension is infinitely expanded, the public interest and private interest, government interest and so on vague and indisputable, resulting in the generalization of public interest. Therefore, for such a social life context and legal context are very important concepts must make a basic definition, clear its connotation and extension. Through semantic analysis in the process of writing, The definition of public interest is mainly carried out from the following aspects: the first part mainly discusses the necessity and feasibility of defining public interest as an important legal concept. The second part mainly from the main body and the content two aspects carries on the detailed legal theory analysis to the benefit subject and the benefit content of the public interest, and on this basis defines the public interest as the public goods which the open community enjoys. The benefits of public services and public rights, etc. The third part focuses on the main characteristics of public interest, public, non-profit, objective reality, development and hierarchy. The fourth part uses the comparative analysis method to distinguish the public interest and the related interest, especially to the public interest and the personal interest, the public interest and the national interest. The fifth part mainly discusses the legislative expression of the public interest definition theory. From the actual situation of our country, it is most feasible for the central power organ, the NPC and its standing committee, to define the public interest by way of legislation, which is in line with the current power system of China. Legislation should not only define the connotation and extension of public interest by means of summing up and enumerating, but also stipulate the subject and procedure of identification. The principle of dealing with the conflict between public interest and related interest and the remedy way when public interest infringes on individual interest or public interest is damaged.
【学位授予单位】：西北师范大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D90
【引证文献】
相关硕士学位论文 前2条
1 郑培筠;论我国城市房屋征收制度中公共利益的界定[D];复旦大学;2011年
2 陈佳丽;论立法中公共利益与私人利益的平衡[D];华东政法大学;2011年
，本文编号：2270216
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