A Study Of The Principle Of Proportionality In Administrative Law

How to balance the relationship between power and right is a permanent topic in administrative law. Almost all the legal systems and institutions in administrative law, including the principle of proportionality (abbr. as POP in the following passages), are established for this relationship. The mighty administrative power is necessary for a modern state to function normally and the unlimited use of the civil rights will lead to "anarchy or mob politics", so the civil rights must be restricted by the administrative power. However, the administrative power is typically a kind of state public power and as the core of administrative law, discretion is easy to be abused to infringe upon the civil rights, therefore, there must be restriction on the restriction on the civil rights by the administrative power. The POP is to balance the relationship between state power and civil rights through "restriction on restriction", and finally to reach the aim of protecting the civil rights and achieving justice. It has been proved by the practice in many countries that the POP has been played an important role in regulating the exertion of administrative power and protecting civil rights. Nevertheless, in China, the POP has not been paid enough attention in academic field and there is even less embodiment in practice. At the same time, the abuse of discretion is threatening and infringing upon the civil rights. Therefore, it is of great importance to use the POP in China for reference. This thesis consists of four chapters. Chapter I is an introduction of the POP. The writer defines the concept and connotation of the POP and compares the POP with the principle of rationality in order to understand the POP more clearly. In general idea, the POP includes three sub-principles: the principle of suitability, the principle of necessity and the POP in the narrow sense. The principle of suitability refers to that the measures taken by the administrative organ must be able to reach the pursued goal; the principle of necessity means that from a list of appropriate measures, the administrative organ must select the one which impairs the civil rights least; the POP in the narrow sense means the infringement upon civil rights caused by the measures shall not be undue, i.e., there must be an appropriate proportion between the measure and the goal. The principle of rationality and the POP are two principles developed separately in common law system countries and civil law countries aiming at the control of discretion. Though sharing some similarities, they are quite different in contents, the range of application and the maneuverability. Chapter II introduces the origin, development and spread of the POP. From the viewpoint of history, the writer researches on its origin and development and reviews how the POP originates from the field of German Police Laws and extends to many other law fields and how it starts from the principle of necessity and ends with three sub-principles. The POP has been accepted by and spread to many countries. Here the writer introduces its development in Japan, Taiwan District, England and France. Chapter III expounds the jurisprudence reasons of the POP and its value and functions. In Section One, the writer discusses the inevitability of the birth and development of the POP from the viewpoint of the principle of justice, equality and human rights. The POP embodies the correction of substantive justice on procedure justice and the regress from procedure justice to substantive justice. The POP pursuits of equality, and it constitutes a measurement of equality by providing a criterion for "reasonable discriminate". The POP could protect the citizens'basic human rights. In Section Two, the writer expounds the value of the POP from two aspects: balancing the public interests and private interests and balancing justice and efficiency. In Section Three, the writer expounds the functions of the POP: firstly, it could regulate the exertion of discretion effectively; secondly, it provides a legal foundation and a maneuverable criterion for judicial review on discretion. Chapter IV is an analysis on the application of the POP in China's administrative law. In Section One, the writer explains the necessity of the application of the POP. Firstly, by holding the principle of "giving priority to validity review, rationality review as exception"in judicial review, many discretion acts are excluded from judicial review, so in order to extend the scope of judicial review, it is necessary to apply the POP. Secondly, the abuse of discretion in China is mainly because of the absence of efficient regulation in law, so in order to control the discretion , it is necessary to apply the POP. In Section Two, the writer expounds the feasibility of the application of the POP. First of all, "the theory of equilibrium"could serve as the platform and...