论我国宪法中“公共利益"的界定

2004年我国的宪法修正案中增加了“公共利益”的概念和制度。但由于其主体和内容的不确定性,需要对其内涵和外延作出必要的界定。我国宪法上的“公共利益”主要体现在征收和征用补偿条款中,但由于普通立法中“公共利益”缺乏明确性及相应的制度配套,导致实践中征收集体所有土地和城市房屋拆迁中对“公共利益”把握的缺失和“稀释”,对此,应当通过违宪审查和宪法委托的制度,使普通立法中的“公共利益”具有合宪性和明确性。

On the Classification of "Public Interests" in China''''s Constitution

Public interest in the constitutional law is a very important concept. However, because of the indefinite subject and content of this concept, it is necessary to interpret it. There are three functions for public interest in the constitutional law: as a limit of constitutional right, the conflicts between it and constitutional rights, prosperity right's tolerance and sacrifice to it. In our constitutional law, public interest is regulated in the taking clause. But, the indefiniteness of public interest in general laws and other institutions cause the absence and dilution of public interest in the course of collective lands taking and urban houses breaking. For it, the constitutional law will have an effect to make public interests in general laws constitutional and definite by the constitutional review and the constitutional trust.