Transcending the dilemma of “public interest” |
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Authors: | Qianfan Zhang |
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Institution: | (1) Law School, Peking University, Beijing, 100871, China |
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Abstract: | This paper discusses the evolution and recent trends in the development of the constitutional concept of “public use” in the
case-law history of the United States starting from the source of US government’s taking powers and the original meaning of
the Taking Clause in the Fifth Amendment of the United States Constitution. Since the concepts of “public use” and “public
interest” are extremely difficult to be defined, it is very hard for the US courts to develop a relevant operative criterion.
In the United States, the safeguard of “public interest” in taking mainly lies legislative rather than judicial control. In
a democratic society, legislative judgment is highly respected by the courts and the entire takeovers that conform to public
use as determined by the Congress are usually deemed constitutional. In this sense, the Congress is a “public interest machine”,
which automatically generates laws and decisions on behalf of public interests through the democratic representative process.
The paper eventually suggests that China should divert its attention from the theoretical definition of “public interest”
to institutional construction, and should make the National and Local People’s Congresses and their standing committees to
play major roles in deciding taking and compensation schemes.
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Translated from Zhongguo Faxue 中国法学 (China Law), 2005, (5): 36–45 |
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Keywords: | public interest public use taking just compensation |
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