On The Principle Of Proportionality In The Administrative Law

The rule of law in the modern times is witnessing a trend that while maintaining the effectiveness of the legal provisions, it makes greater efforts to check the public powers in various and comprehensive means. This trend subsequently poses a new problem on the administrative laws: how can they make sure that administrative powers are limited to a necessary extent and will not pursue their purposes unscrupulously and that they will not lead to acts whose total costs exceeding the total benefits? In the continental law system, this problem is resolved by balancing the relationship between the goods of the administrative actions and their means to achieve such goals, by taking into discrete consideration the law's three elements of justification, necessity and appropriateness, even by carefully weighing the conflicting interests embodied by carefully weighing the conflicting interests embodied by these three elements. In other words, by applying the principle of proportionality a principle deemed as "king clause" in the public laws and one of the most principles to safeguard human rights. Chinese mainland's administrative laws, however, haven't yet made response to such a key issue, leaving a meaningful task in the study of administrative laws: what factors caused this situation and what shall we do?This paper is just written out of the author's thinking on these questions. It wakes a deep analysis of the intrinsic values of the principle of proportionality of defending the justice, freedom and maintaining order and efficiency in a variety of explorative ways such as logic reasoning and historic, comparative and empirical analytic ways. Furthermore, it demonstrates that it's necessary and feasible that the principle of proportionality is to be adopted as a basic principle of the administrative laws. Finally, it puts forward some suggestions as to theconstruction of a new administrative legal system.