The Principle Of Proportionality And Its' Application In Chinese Law

The principle of proportionality is a very important principle in German law. This principle has become more and more crucial in the legal process Germany.There has been lots of research on this principle in Germany. And now Chinese scholars are paying more and more attention on this topic.But if we look deeply into the theory, legislation and cases of this principle, we can find the fact that this principle is not fully understood in China which may lead to application mistakes. Another question should be mentioned here is that according to the Chinese Administrative Litigation Law, administrative acts shall only be tested on its legal elements, which means judges shall not be allowed to test whether the acts are reasonable.After analyzing the situation of this principle in China, this article reaches to the conclusion that we shall introduce the first two sub-principles (principle of suitability and principle of necessity) to China at the beginning, then introduce the last sub-principle (principle of proportionality in narrow meaning).As for the approach of introduce, there are three ways: legal interpretation approach, legislation approach and case law approach. Legal interpretation approach is the most economic way, as well as the easiest way. So this article holds that we shall take the legal interpretation approach first, and then write this principle into law. Meanwhile, the Supreme Court can publish some cases related to the application of this principle which may help the judges understand and apply this principle correctly.