公法权利理论视角下对私人公众用财产利用之探析

Discourse about the Private Property Used by the Public from the Angle of Public Legal Rights Theory

私人公众用财产是一种由私主体提供而为公众使用的财产,不同于私有公物,其公用性并不稳定。当该类财产遭遇行政权力不当干预以致公用性遭受损害时,公民对该类财产享有的利益被认为仅是一种事实上的便利,只能间接被动地对该类财产进行利用。实际上透过法律基本元素理论与法经济学的分析可见,包裹在事实便利面纱下的是为法以可得而推知的方式承认的个人利益以及可主张的公法权利。

The private property used by the public, which is ditterent from private public property, is a specially non-exclusive property for the public use. The public utility in a state of instability because it is not only derived ti＇om the private body, but also to provide for the public use. When facing the matter that private provision of public property encounters into the misconduct of administrative power with damage to the publicity, citizens＇ interests in such property are just considered to be mere factual convenience. It means this kind of property can only be used indirectly and passively by citizens. In fact, with the analysis of legal basic element theory and law and economies, we can see that what is wrapped up in the cloak of the convenience is the civil interests and public law rights, which is admitted to be legal in the way that can be inferred.