Taipei Society - 澄社

公共利益,我們一起定義!

徐世榮 政治大學地政學系教授

北市府實施都市更新,在暴力強拆王家之後,引發龐大批評;同時刻,土地徵收及市地重劃也爆發多起激烈抗爭。我們社會應當認真思考這些爭議的核心課題:公共利益該如何界定?

公共利益是抽象詞彙及法律不確定概念,其體現必須經由嚴謹的行政程序,在資訊公開及民眾公平參與的情況下,共同來形塑;也就是說,公共利益是經由公平公開的參與、溝通及討論,最後所獲得的共識之謂。為了捕捉公共利益,先進民主國家大多已拋棄過往由少數學者專家來獨斷的傳統方式,而是積極鼓勵民眾參與,在尊重不同的知識體系(如地方及傳統知識)、多元的價值選擇(如土地是家),來正當化及合理化公共利益。

惟,我國已習於威權統治,政府及其聯盟牢牢掌握公共利益的詮釋權,非常缺乏對於計畫形成過程的關注,這個情況並未因解嚴而有根本變革。長久以來,為了追求經濟成長及增進效率,政府往往便宜行事,隨意訂定興辦事業計畫(如國科會中科四期)、都市計畫(如花蓮吉安)、土地徵收計畫(如苗栗大埔、新竹璞玉及二重埔)、市地重劃計畫(如台中南屯天主堂)、都更計畫(如文林苑)等。制度上,甚少有民眾參與的機會,縱然是有,也僅是為了滿足「跑程序」的形式要件而已,相當缺乏實質意義。

多年前,我國在制訂《行政程序法》時,原本欲師法德國法制,將「計畫確定程序」納入,惟後來政府基於「行政體制及行政文化差距甚大」理由,將大多數條文刪除,僅保留163及164條。法務部後來雖曾擬定相關草案,但是政府及其聯盟仍不願意將權力釋出,這使得民眾參與至今依舊只是個口號。當民眾無法參與,憲法所保障權利遭受侵奪,自然被迫走上街頭,透過抗爭來陳述其所受的冤屈與不平。

因此,將計畫確定程序納入相關法規,讓相關利害關係人都能夠參與,經由聽證程序來共同形塑公共利益,應該是當務之急。

http://www.libertytimes.com.tw/2012/new/apr/13/today-o10.htm

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