Transcending the dilemma of “public interest”

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. __________ Translated from Zhongguo Faxue 中国法学 (China Law), 2005, (5): 36–45     

试论科技公益诉讼

建立科技公益诉讼制度是提高科技法律法规实施效果的重要途径。本文尝试分析了科技公益诉讼的主要特征、现实依据与构建方案 ,认为它对于有效制止国家科技管理中的违法行为、科研活动中的不轨行为及欺骗政府行为等具有重要意义     

实现公共利益的行政法思考

行政法的目的就是协调个体利益和公共利益之间的矛盾,在保护好个体利益的基础上实现公共利益的最大化。本文通过对公共利益、个体利益二者特征及相互关系进行对比分析后认为,个体利益更具有法律性。所以,只有完善对个体利益的法律调控,才能解决公共利益的不确定问题,真正实现公共利益和个体利益的统一。     

检察机关提起行政公益诉讼的法律思考

行政的本质属性是公共性,这种特性决定了一切行政活动应当依法进行并以促进和维护公共利益为己任。如果行政权背离这一目标,必须运用包括诉讼在内的手段予以救济。检察机关作为专门的法律监督机关,是公共利益的代言人。为了普遍的公共利益而维护法律,由检察机关提起行政公益诉讼具有理论和现实意义上的必要性、可行性。     

The politics of managed competition: public abuse of the private interest

The doctrine of managed competition in health care sought to achieve the social goals of access and efficiency using market incentives and consumer choice rather than governmental regulation and public administration. In retrospect, it demanded too much from both the public and the private sectors. Rather than develop choice-supporting rules and institutions, the public sector has promoted process regulation and benefit mandates. The private health insurance sector has pursued short-term profitability rather than cooperate in the development of fair competition and informed consumer choice. Purchasers have subsidized inefficient insurance designs in order to exploit tax and regulatory loopholes and to retain an image of corporate paternalism. America's health care system suffers from the public abuse of private interests and the private abuse of the public interest.     

中国《反垄断法》(草案)公共利益理念研究

The concept of public interest is the core concept of anti-monopoly law, whose core position is embodied in two aspects: On one hand, the concept of public interest is the ideological basis of generating modern anti-monopoly law; on the other hand, it serves as a platform for integration of multi-value of anti-monopoly law. The function of public interest concept of anti-monopoly law is embodied by public interest clauses of the Anti-monopoly Law. More specifically, public interest is an important standard in judging whether it restrains competition and a key basis of exception in application of the anti-monopoly law, and it influences the execution procedure of anti-monopoly law. The public interest clauses in the Anti-Monopoly Law have some defects, which should be improved in two aspects: One is to keep consistent in use of concepts, the other is to be rational in grasping the connotation thereof.     

Of public interest: How courts handle rape victims' privacy suits

In spite of a string of unfavorable court decisions, rape victims continue to bring privacy suits against news organizations that identify the victims. Based on case history, journalists have little to fear from such privacy suits because appellate courts usually find victims' names add credibility to stories and, therefore, are of public interest. Most judges seem to believe that they cannot logically rule a basic fact, such as a name, to be private in one set of circumstances and not in others. A ruling in rape victims' favor may create a slippery slope that erodes the press' First Amendment freedoms. However, the courts' limited opinions provide victims with the possibility that in some circumstance a court may rule against the press on this issue. From a journalist's perspective, a broader ruling is needed to discourage rape victims from bringing suits that, while destined to be unsuccessful, are nonetheless costly to defend.     

食品药品领域检察公益诉讼适用惩罚性赔偿研究

食品药品安全领域案件管辖范围不是一成不变的,食品药品的概念不是确定案件管辖范围的唯一标准.食品药品范围应当理解为广义,可以将与食品药品紧密联系的相关产品的案件纳入可诉范围中,保健品、"药妆"属于食品药品领域范围内.探索推动食品药品领域内惩罚性赔偿的诉讼请求和责任承担方式具有理论和实践上的必要性,应当支持在食品药品领域检...     

The role of whistle blowing for public interest and the protection of the whistle blower in Nigeria

One of the functions of governments is the protection of public interest. The performance of this function is one of the criteria used in assessing governments’ credibility. Thus, the occurrence of whistle blowing in the interest of the public, and its aftereffect, improves the confidence or discourages subsequent observers of wrongdoings from disclosing. The article finds that Nigeria lack adequate laws to protect whistle blowers. It therefore recommends for an adequate protection of whistle blowers, including training and awareness of whistle blowing so as to adequately protect the whistle blower and sustain public interest.     

Access to confidential medical records by courts and tribunals: the inapplicability of the doctrine of public interest immunity

A number of Australian courts' decisions have afforded protection to public records. Statutory protection has also been given to counselling records in some jurisdictions in the context of the provision of services to victims of sexual assault. In the aftermath of the extension of public interest immunity in the particular circumstances of Clifford v Victorian Institute of Forensic Mental Health [1999] VSC 359, the argument was raised that a further extension should be made to protect personal health records against attempts at regulatory investigation of allegations of unprofessional conduct. In Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 the Victorian Court of Appeal unanimously declined to make such an extension. This appears to be indicative of a shift by Australian courts toward compelling disclosure of medical records in the interests of fairness save in very exceptional circumstances.     

踱步于理想和现实之间——公益诉讼法律移植的不适性研究

公益诉讼的本质是民治，其需要有民主政治和独立司法的环境，需要有成熟市民社会的力量支撑。然而，中国至今还未形成真正意义上的市民社会；一元化政治体制又难以认同、接纳公益诉讼；传统文化更是从精神上抵制公益诉讼。在这种环境下移植公益诉讼法律制度，即使能遂人心愿，其结果也很可能只是一部“死法”。但是，公益诉讼是封中国目前主流社会病态很有针对性的一剂良药，所以，即使是“死法”．也值得移植，因为法能良化公益诉讼的生存环境。