| 物权法抽象规定公共利益的理由及解决思路 |
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| 引用本文： | 兰仁迅.物权法抽象规定公共利益的理由及解决思路[J].华侨大学学报(哲学社会科学版),2010(2):74-81. |
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| 作者姓名： | 兰仁迅 |
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| 作者单位： | 华侨大学,法学院,福建,泉州,362021 |
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| 摘 要： | 物权法维持对公共利益的抽象规定,是因为：在认识上,尚存否定公共利益的客观存在的观点;在性质上,公共利益在法律上难以界定;在立法例上,难以找到对公共利益的具象规定;在国情上,中国国情需要公共利益的抽象规定;公共利益的抽象规定既能够贯彻经济政策原则性与灵活性,又能够让双方当事人充分博弈。我们可以在一定程度放弃公共利益的争论,从以下两个方面保证合法私产不受公权力不当侵害：一方面征收必须经过正当程序;另一方面必须给予被征收者以足额的补偿费用。
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| 关 键 词： | 物权法 公共利益 抽象规定 |
Reasons of Abstract Regulation of Public Interest in Property Law and the Ways of Solving |
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| LAN Ren-xun.Reasons of Abstract Regulation of Public Interest in Property Law and the Ways of Solving[J].Journal of Huaqiao University(Humanities & Social Science),2010(2):74-81. |
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| Authors: | LAN Ren-xun |
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| Institution: | LAN Ren-xun (Faculty of Law, Huaqiao Univ. , Quanzhou, 362021, China) |
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| Abstract: | During the process of making property law, the public have fully participated in discussion. Whether public in- terest should be defined in the Law is one of the focuses. After discussed in-depth, legislature and scholars involved con- sider that the regulation of public interest in Property Law should be in conformity with that in the Constitution, which is regulated in abstract way. Beside its peculiarity and intricacy, there are other reasons why public interest is regulated in an abstract way in Property Law ： in cognition, there are still some ideas to deny the existence of public interest ; in nature, it is hard to be defined to the public interest from legal perspective ; in the cases of making laws, it is difficult to see the con- crete regulation of public interest in any formal law; from actual conditions of our country, the abstract regulation of public interest is in line with our national conditions. On the one hand, the abstract regulation of public interest could implement the flexibility and principle of economic policy and offer a platform for both parties to have a fully competition. It is feasible to set aside the argument of public interest in some extent. And the legitimate rights and interests of private property could be protected from the improper invasion of public power by establishing the necessity of due process in property collection and giving full compensation to those whose property are collected. |
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| Keywords: | property law public interest abstract regulation |
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