Expert Suggestions on Fuzzy Defining Standards for Public Interests and Frequent Disputes
Define the connotation and tighten the public interest gate
□ reporter Wang Yang
□ Our newspaper trainee reporter Bai Chuxuan
Public interest, as the name suggests, is not a personal interest.
On the surface, the term public interest is clearly defined.
However, it is difficult to find a unified definition for this term that is widely seen in many laws.
The Higher People’s Court of Hubei Province recently issued a second-instance judgment on the case of a catering company in Jingzhou City v. the municipal government’s administrative reconsideration decision. The reason for rejecting the appeal was that although the administrative action of the environmental protection department was confirmed to be illegal, the cancellation of the penalty decision "will exist in the public interest The hidden danger of causing major damage".
Similar cases are not uncommon.
On September 29, 2020, the Supreme People’s Court made a retrial judgment on an expropriation decision made by the Xixiu District People’s Government in Anshun City, Guizhou Province. It held that the district government did not provide sufficient evidence to prove that the revocation of the expropriation decision would cause harm to the national interest and the public interest. , To revoke the decision to revoke the expropriation decision.
An expert told a reporter from the Rule of Law Daily that the uncertainty of the concept of public interest has caused chaos in judicial practice.
According to the current law, although public interest and individual interest belong to the corresponding category, in essence, both are objects of protection.
When conflicts arise, we should first consider protecting public interests and individual interests at the same time, and then consider the priority of public interests in legal protection.
In addition, the national legislature should clarify the concept of public interest as soon as possible and unify the standards for the application of laws.
When realizing public interests, minimize the damage to individual interests.
Frequent public interest related disputes
Hold the line of justice and justice
On June 3, 2019, the Beijing Internet Court served the verdict on both parties in the “sweeping traffic” case in accordance with the law.
At the same time, the Beijing Internet Court also received the illegal profits paid by both parties in this case-the plaintiff Chang Moumou paid 16,130 yuan to the court for illegal profits, and the defendant Xu Mou paid 30743 yuan.
So far, this nation’s first case involving “dark brush traffic” inflated website traffic has been successfully implemented.
The Beijing Internet Court held that the act of "sweeping traffic secretly" violates the bottom line of business ethics, which reduces the value of honest labor of competitors in the same industry, disrupts the legitimate market competition order, infringes on the interests of unspecified market competitors, and also deceives and deceives. Misleading network users to choose network products that do not match their expectations.
The transaction behavior of "sweeping traffic" between Chang and Xu infringes on the interests of unspecified Internet users, thereby harming the public interests of the society and violating public order and good customs, and their behavior should be absolutely invalid.
Regarding public interest cases, there is also the case of Yang Fan, who has been raging on the Internet to discourage smoking and cause death.
Earlier, Duan was smoking in the elevator, and Yang Fan discouraged him. As a result, the two had a language dispute. The property staff found out and mediated.
However, Duan, who was nearly 70 years old, suffered a heart attack after entering the property office and died after rescue.
In accordance with the principle of fairness, the court of first instance ruled that Yang Fan should compensate Duan’s family by 15,000 yuan, and Duan’s family refused to accept the appeal.
The court of second instance denied that there was a legal causal relationship between Yang Fan’s dissuasion of smoking and Duan’s death. It held that “dissuading smoking is an act of safeguarding the public interest” and revoked the judgment of first instance without Yang Fan’s appeal and exempted Yang Fan. Compensation responsibility.
Guo Zeqiang, a professor at Zhongnan University of Economics and Law, told a reporter from the Rule of Law Daily that one of the functions of the law is to maintain public knowledge and order, fairness and justice.
The court can give a fair judgment to the party defending the law and public morals, so that people have the courage and confidence to stand up when facing illegal acts in the future.
The court of second instance discusses matters and discusses the case. It does not involve anything else. It corrects the first instance court’s use of the law without harming those who do not want to do what is right. This reflects the responsibility of the judiciary in the face of complex disputes, public opinion and other pressures. He Dingli has also held the last line of defense of fairness and justice.
Lack of clear definition of public interest
There is a risk of arbitrary application of laws
There is currently no uniform definition of what is public interest.
Faced with the "public interest" that has been questioned because of the lack of definition, the legislative department explained that public interest is different in different fields and in different situations, and the situation is quite complicated, and it is not appropriate and difficult to make uniform provisions on various public interests. .
On the Peking University Magic Weapons website, a reporter from the Rule of Law Daily conducted a search using "public interest" as the key word, and found a total of 2,100 currently valid laws, administrative regulations, judicial interpretations, and departmental rules that mentioned "public interest".
However, in such a large number of laws and regulations, the "Rule of Law Daily" has not found an accurate definition of public interest.
On November 26, 2020, the Hubei Provincial Higher People's Court made a second-instance judgment on the case of a catering company in Jingzhou City v. the municipal government's administrative review decision and rejected the appeal on the grounds that although the administrative action of the environmental protection department was confirmed to be illegal, the decision to revoke the penalty "will exist The hidden danger of causing major harm to the public interests of society."
In January 2018, the environmental protection department of Jingzhou City stated that the floating restaurant of a catering company in Jingzhou City "has not completed the environmental assessment procedures without authorization to construct the main project, did not construct environmental protection facilities and did not enter into operation without the "three simultaneous" inspection and acceptance. On the grounds of “excessive discharge of wastewater into the Yangtze River”, it is proposed to impose administrative penalties on the suspension or closure of floating restaurants of a catering company in Jingzhou.
A catering company in Jingzhou City filed a defense with the environmental protection department. The environmental protection department adopted the company’s opinion that “there is no discharge of water pollutants in excess of the national water pollutant discharge standards”, but the company’s existence is that the oil-water separator is used in business activities. Part of the catering wastewater in China was directly discharged to the Yangtze River, causing an impact on the surrounding water environment,” and a fine of 100,000 yuan was made.
In November 2018, the environmental protection department of Jingzhou City again decided to suspend business and close down a catering company in Jingzhou City with the same facts and reasons.
After the reconsideration, the People's Government of Jingzhou City held that the punishment decision contained unclear main facts and insufficient evidence, and should be revoked according to law.
But he also believes that if the penalty decision is revoked, a catering company in Jingzhou City may resume operations, and the risk of pollution to the surrounding environment still exists, and there is also a hidden danger of serious damage to national interests, social public interests and the lives and health of the people.
In the end, the Jingzhou Municipal People's Government confirmed that the administrative actions of the environmental protection department were illegal, but they did not revoke it.
A catering company in Jingzhou City sued the court, but both the first instance of Jingzhou Intermediate People's Court and the second instance of Hubei Provincial Higher People's Court supported the views of the People's Government of Jingzhou City during the reconsideration and ruled that the administrative actions of the environmental protection department were illegal, but they were not revoked.
A catering company in Jingzhou filed a complaint with the Supreme People's Court.
The company believes that after the first punishment by the environmental protection department, the company has completely rectified its business premises to meet the relevant emission standards, and there is no behavior that would cause major damage to the public interest.
At the Litigation Service Center of the Fourth Circuit Court of the Supreme People's Court, an interview judge conducted a pre-litigation resolution on the person in charge of a catering company in Jingzhou.
The interviewing judge believed that the ecological environment of the Yangtze River is very strict. This is a big policy requirement. The government only shut down and did not show a fine. The retrial has no practical meaning. "Just go back to the compensation lawsuit."
Hu Gongqun, a legislative consultant of the Standing Committee of the Beijing Municipal People’s Congress, said that public interest is similar to principles of honesty and credibility, public order and good customs. They are abstract legal principles and have certain flexibility in their application.
But in practice, the more specific the regulations invoked by judges, the more it can reflect the professionalism and neutrality of justice.
Under the premise that the legislation does not define public interest, relying on judges who specialize in adjudicating cases in accordance with the law to invoke and interpret public interest may lead to the risk of arbitrary application of legal principles and affect the predictability and credibility of justice.
Legislation defines the connotation of public interest
Administrative power and judicial power intervene at the same time
According to incomplete statistics by reporters from the Rule of Law Daily, since 2009, there have been more than 400,000 judgments and rulings involving "public interest" on the Chinese Judgment Documents website. Most of these legal documents do not explain what constitutes public interest. Some courts either only quote the term public interest, or interpret public interest relatively casually, or even abuse "public interest", which affects the stability of the effectiveness of the adjudication.
Earlier, He Shuxiu signed an agency contract with Guangdong XX law firm to agree on risk agency. Later, Guangdong XX law firm asked He Shuxiu to pay all the attorney fees stipulated in the contract on the grounds that He Shuxiu privately withdrew the lawsuit without his consent.
The People’s Court of Chancheng District, Foshan City, Guangdong Province held that in order to maximize the benefits, a certain law firm in Guangdong restricted the client He Shuxiu’s litigation rights such as mediation, reconciliation, withdrawal, and abandonment of litigation claims, which violated He Shuxiu’s litigation. The right of free disposal violates the public interest.
Regarding the public interest, the court of second instance held that, as legal service providers, a Guangdong XX law firm and its lawyers should respect the client’s independent choice of mediation and settlement in accepting litigation matters entrusted by the parties.
For the purpose of overcharging agency fees, restricting the client’s acceptance of mediation and reconciliation not only infringes the client’s litigation rights and increases the client’s litigation risk, but is also not conducive to promoting social harmony and violating social public interests.
In the end, the court rejected the appeal of Guangdong XX law firm.
According to an interview with a reporter from the Rule of Law Daily, in judicial practice, in addition to the above-mentioned disputes involving public interests, land and house expropriation decisions are also areas where public interests and individual rights conflicts are more obvious.
According to Shanghai lawyer Lin Sigui, the house expropriation decision refers to the administrative decision made by the city and county governments to expropriate houses on a state-owned land. Once revoked, it means that the administrative decision has no effect, which will directly lead to the expropriation work. If the expropriator still wants to carry out expropriation work on the land, the pre-expropriation procedure needs to be restarted.
In judicial practice, cases confirming that expropriation decisions are illegal have occurred from time to time, but there are few cases where expropriation decisions have been revoked.
However, a reporter from the Rule of Law Daily found that in recent years, cases of revocation of expropriation decisions have gradually increased.
On August 8, 2017, the People's Government of Xixiu District, Anshun City, Guizhou Province issued a letter of expropriation decision, and Mr. Wang's house was included in the expropriation scope of the shanty reconstruction project.
The court of first instance rejected Mr. Wang's claim on the grounds that the expropriation decision made by the Xixiu District People's Government of Anshun City was legal and in line with the needs of the public interest.
The court of second instance confirmed that the expropriation decision was illegal, and the shantytown renovation project is an important housing security project for the government, with obvious public welfare attributes. Once cancelled, it will damage the greater public interest.
Accordingly, the judgment shall not be revoked.
On September 29, 2020, the Supreme People’s Court gave the final word: the expropriation decision No. 19 made by the People’s Government of Xixiu District, Anshun City, exceeded statutory powers, lacked legal basis, and did not provide sufficient evidence to prove that the expropriation decision involved in the cancellation of the case would give The national interest and social public interest caused significant damage, and the accused expropriation decision had a realistic basis for cancellation. The final judgment revoked the expropriation decision made by the Xixiu District People's Government of Anshun City.
Zhang Yunshu, a professor at the Law School of Anhui University of Finance and Economics, believes that although it is difficult to accurately define public interest, the basic characteristics of public interest can be clarified: First, the subject is not specific.
The subject of public interest is an unspecified majority or the whole, and the common interests of these unspecified subjects point to areas where the interests of the subjects are consistent.
Second, direct correlation.
Public interest should also be directly enjoyed by stakeholders, and it is necessary to avoid all matters indirectly related to public interest as public interest.
Third, the non-profit nature of the purpose.
Government expropriation cannot be for profit, otherwise it is not in the public interest.
"The Supreme Law’s decision to revoke the expropriation decision made by the People’s Government of Xixiu District, Anshun City, the core value of which is to clarify for the first time whether public interests have been harmed by the revocation of the illegal expropriation decision, and the court needs to base on the evidence in the case and what can be ascertained. Facts are reviewed in accordance with the law." Zhang Yunshu said.
Wang Xixin, executive dean of the Institute of Law and Development, Peking University, pointed out that due to the uncertainty of public interest in reality, administrative agencies have a lot of discretion.
Since the administrative subject is not a natural representative of public interest, and the administrative power is naturally expansive, this may lead to the abuse of discretion in administrative law enforcement.
In the case where the law does not delimit the scope of public interest, state agencies may label matters that are beneficial to their own interests as public interest.
Therefore, the realization of public interest requires not only legislation to define the connotation, but also the intervention of executive power and judicial power.