论我国土地征收法制的公共利益问题

A Discussion on the Public Interests Issue of Land-levy Legal Systems in China

公共利益是一个不确定的法律概念,旧《城市房屋拆迁管理条例》没有明确界定,在法律适用过程中产生裁量空间,为实践中的滥用提供了可能。新《国有土地上房屋征收与补偿条例》对公共利益给予明确定义,试图对我国一直纷争不断的土地征收问题提供完善的解决之道。但是,公共利益是一个开放性的概念,随着历史的演进而不断地变更其内容。事实上,我国土地征收问题并非在公共利益的界定,而是在于有没有一套完善的机制。因此,我国的土地征收法制除了需要进行改革与完善,还需要进行实体层面上公共利益的界定与程序层面上土地征收程序的建构。

Public interest is an uncertain legal concept, which is not clearly defined by the old-version of The Administration Regulations on the Demolition and Relocation of Urban Houses, produced a discretion space in the process of legal enforcement, and caused the possible abuse in practice. The newly-amended version of Levy and Compensation Regulations of Houses on the State-Owned Land offered a clear definition to the public interests, and tried to provide a perfect solution to the ever-conflicted land levy issues in our country. But public interest is an opening concept which continually changed its connotation with the evolution of history. In fact, the problem of land levy in our country consists not in the definition of public interests, but in whether there is a set of perfect mechanism.Therefore, the land-levy legal systems in China need not only to be reformed and perfected, but also to be redefined on the public interest in the entity level and to be restructured in the land levy procedure at the program level.