政策变迁中公益牺牲与社会义务之调适——以城镇小区配套幼儿园移交政策为例

The Adjustment between Public Welfare Sacrifice and Social Obligation in Policy Change:Taking the Transfer Policy of the Matching Kindergartens in Urban Communities as an Example

公共政策变迁中由于涉及对私主体财产权的拘束而执行困难,并影响政策目标实现的情形,在实践中屡有发生。城镇小区配套幼儿园移交政策就集中反映了此类问题。由于城镇小区配套幼儿园原所有者财产权之取得具有长期的政策背景,而产权移交又涉及其权利减损,进而出现政策执行困难。究其原因,是基于公共利益需要而产生的特别牺牲,与财产权的社会义务之间存在冲突。前者的不可期待性与后者的可期待性之间界限模糊。调控与助推理念的适用有助于调适二者的关系,促使利益调控成为行政法的基本任务之一,进而建构以比例原则、依法行政原则和溯及力标准为主要内容的调适标准,使公共利益维护和私人利益保障之间尽可能平衡,进而推动公共政策目标的实现。

The change of public policy is often difficult to realize because it is restricted by the property rights of private subjects, which affects the realization of policy objectives.This problem is reflected in the transfer policy of the matching kindergartens in urban communities.Because the original owners of matching kindergartens in urban communities have a long term policy background to obtain property rights, and the transfer of property rights involves the impairment of their rights, it is difficult to implement the policy.The reason is that there is a conflict between the special sacrifice based on the needs of public interests and the social obligations of property rights.The boundary between the two is fuzzy.The application of the concept of regulation and promotion helps to adjust the relationship between them, making interest regulation one of the basic tasks of administrative law and then constructing the adjustment standard, with the principle of proportion, the principle of administration according to law, and the standard of retroactivity as the main content.In this way, the maintenance of public interests and the protection of private interests would be balanced as much as possible to achieve public policy objectives.