Comparative Study on the Common Interests as Legal Interests and the Privatization of the Public Services in the Context of the Reconstitution of the Administrative Law Theory

首先，在承认共同利益主体为司法主体方面，日本《环境评估法》虽然在尊重环境保护共同利益方面取得了很大进步，但由于没有从社会经济的角度承认对评估过程的参与，也存在一些不足。笔者认为，必须通过立法对共同利益进行程序性保护，克服承认共同利益被整体利益吸收的思想。作为一个具体的例子，我选择了景观保护，并得出结论，我们必须构建宜人保护的理念，景观保护法的解决将有助于保护个人的景观利益。第二，关于公共事务的私有化，由代表团或PFI，我们必须构建法律制度，并找到保护公共事业使用者权利的途径。作为具体的例子，我选择了公立日间托儿所的私有化和儿童及其父母的权利保护。我展示了该市和父母在开始留住孩子时达成的共识的司法效果，并得出结论，在废除公共日托所并将其私有化时，该市必须尽可能尊重这一共识。

First, concerning the recognition of the subject of the common interests as juridical subject, although the Japanese Environmental Assessment Law advanced largely the respect of the common interests in the environmental protection, there is on the other hand several insufficiencies because it not recognizes the participation to the assessment process from the social-economic point of view. I showed that we must legislate the procedural protection of the common interests and overcome the thought which recognizes the absorption of the common interests by the general interests. As a concrete example, I chose the landscape protection and concluded that we have to construct the idea of the amenity protection and that the settlement of the Landscape Protection Act will contribute to the protection of the landscape interests for the individuals.Secondly, concerning the privatization of the public affairs by the delegation or the PFI, we have to construct the legal system and find a way to protect the rights of the users of the public utilities. As concrete example, I chose the privatization of the public day nursery and the protection of the rights of the children and their parents. I showed the juridical effects of the consensus elaborated between the city and the parents at the time of the start to keep the children and concluded that the city must respect as most as possible this consensus at the time of the abolition and the privatization of the public day nursery.