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Research On The Principle Of Proportionality In Public Law

Posted on:2006-04-18Degree:DoctorType:Dissertation
Country:ChinaCandidate:X JiangFull Text:PDF
GTID:1116360155454577Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Although the principle of proportionality as a concept in law was originated in Germany during the nineteenth Century, the basis on which the principle contracted and developed from, i.e., the thought of proportionality has a long history and can be traced all around the world. It should be held that the principle of proportionality is a product of the country ruled by law, an excellent annotation and an intangible proof of the process from rule by law in formality to substantiality, a landmark of transformation from the unitary goal which sings high praise for public interest to the goal which emphasizes the compromise between public interest to private interest, a scale to control public power, a dial to protect private rights and a symbol of the rule of law in one country. The present dissertation includes five chapters which discuss the principle of proportionality in detail. Chapter I. The collation and stipulation of the principle of proportionality This chapter analyses the meaning of the principle of proportionality from the very beginning, then put it into the area of law, and then discusses the basic definition, the characters and orientation of the principle of proportionality in public law. After these collation and stipulation mentioned above, the author tries to interpret the logical meaning of the said principle. Then in order to recognize the principle concerned more comprehensively, the author compares it with other related principles. All in all, the author argues that the function of the principle of proportionality in public law lies in the restriction of the means and methods of the playing of the public power, so that the national departments can exercise their power appropriately and cautiously. Except for the method adopted for accomplishing public end, we should choose the means which will cause harm to the private right as less as possible. When the end meets, the means adopted should keep balance with the harm it caused. As to the character of the principle of proportionality, most of the academic circles take it as a legal principle, but the author holds a different opinion. Specifically speaking, among all the characters of the principle of proportionality, the principle of suitability and the principle of necessity have the same characters as the legal principles, which can be called as a 'standardized principle'. But the principle of proportionality in a limited sense has all the inner attributes of a perfect legal rule, i.e., an 'open legal rule'. Judging from this, we should conduct meticulous research on the nature of the said principle in the prerequisite of attributes in broad sense. Being the core of the principle of proportionality, just like other legal rules, the one in the limited meanings has some uncertainty and generalization, which will relates to the subjective judgment inevitably. Hence it will cause trouble if we don't do subtle research on the principle of proportionality. On one hand, regarding to interpretation structure of the principle of proportionality, the author agree with the argument which can be classified into three stages, i.e., the principle of suitability, the principle of necessity and the principle of proportionality in a limited sense. But it sounds necessary for us to explain the subtle connotation of every less important principle so as to clarify the possible doubt in the exercising process. Form this perspective, the author talks about the logic suture of the legal principle by referring several arguments held by jurisprudence scholars. The author holds that the question logic structure is the question about application. As to the principle ofproportionality, if we want to use is precisely, we will analysis the annotation structure. The author mainly focuses on the principle of necessity and the principle of proportionality in limited sense, through absorbing and borrowing the research product of predecessors, such as the balancing of interests, the possibility of anticipation, the theory of interaction and other theories. Regarding to the location of the principle of proportionality in the legal practice, the author argues that the said principle is not only just in administrative scale, but also a restriction on administrative action, including other functions. After explaining the orientation generally, the author put forward some operation know-how which has directive meanings from the concreted application. Since there will be some conflicts and confrontation when the principle of proportionality as applied with the other rules. So it needs to compare it with the related principles so as to master the said principle more precisely. The author chooses the principle of rationality and other ones. Chapter II. The recall and forecast of the principle of proportionality. The present chapter recalls and forecasts for the principle of proportionality, which conducts comparative research on the principle of proportionality in those developed counties. It holds that the Anglo-Saxon legal system does not use the word as the principle of proportionality, but achieves the same goal with different means as those methods which stipulated to confine the national power. As to the principle of proportionality in the continental law system, specifically the German ones, is generally recognized after admitting the protection of the basic rights and judicial judgment. This chapter analysis the whole process of the origination and development in the back ground of the Germany law, and explains the principle of proportionality. After doing this, the author introduce the origin and development of theinternational organization and international court generally, which has the WTO and the EU as the centre. Chapter III The theoretical foundation for the principle of proportionality This chapter discusses the theoretical foundation for the principle of proportionality from three aspects. Firstly, it introduces the jurisprudence foundation for the said principle, which argues that the constitution philosophy related with the national power and citizen right is the philosophy and language resources dwelled by the said principle and the thought resource reflecting the control of country and the protection of the private right. Secondly, it conducts research on the legal physiology foundation dwelled by the principle of proportionality, which argues that principle of rule by law and the protection of the basic rights are the homeland of the principle of proportionality. At last, it explains the justice for the existence of the principle of the proportionality from the freedom, from the equation and from the justice. The author holds that the principle of proportionality is the pursuance for substantial justice and the justice of the individual case. The said principle is the compromise between the protection of human rights and the chasing for efficiency. Chapter IV. The function and the limitation of the principle of proportionality This chapter focuses on the function and limitation of the principle of proportionality. The author holds that the function of the principle of proportionality is mainly about the individual case, which regulates whether the means adopted by the public power and the end its intending reaching can keep balance to some extent. In order to do this, the author try to weigh out which one of the public interests and the private interests is more important from the vantage point argued by Alexy, and do put forward the argument thatthe two interests can be balanced. Judging from this, the principle of proportionality founds its theory and system support. Meanwhile, the principle of proportionality confines the confinement of the basic right. But we need to be care of that the said principle is not a balm for treating headaches, scalds and other minor ailments. The principle itself has some confinements, such as the restriction in operation, the abundance of flexibility, which is abstract and generalize. Chapter V. The influence of the principle of proportionality to the improvement and perfection of the construction of rule of law in the public law. This chapter includes the research on the meaning of the principle of proportionality to the improvement and perfection of the construction of theory in the public law . Firstly, it introduces the principle of proportionality in our legal system generally, and then it analysis the status ago of the construction of rule by law in the public area from the perspectives such as theory and legal practice. The principle of proportionality can be deemed as the fundamental principle in the administrative law, so is true in the constitution law. Judging from this, the principle of proportionality should be adopted widely in the public law of our country. The author analysis the various demands of the three less important principles from the positive impact and the negative impact two points. Actually it is originated from the balance of the three parties, which aims to the protection of the citizens'right. In a word, the present dissertation is brand new in the following aspects, which includes the theory foundation of the principle of proportionality, the system in history and comparative law. It not only conducts analysis on the system background, but also enlightens the orientation of the principle of proportionality and the rationality and justice of this trend. The predicted...
Keywords/Search Tags:The Principle of Proportionality, Basic rights, Public power public interest private interest, Public law
PDF Full Text Request
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