The Application Of Principle Of Proportionality In Administrative Enforcement

Principle of proportionality is an important principle of administrative law in the world's many countries and regions, and is applied in varying degrees. Many countries and regions have applied to the principle of proportionality to the legislative, judicial, administrative, especially administrative enforcement areas. China's law theory especially in the field of administrative law also made some studies. Starting with the analysis contained in this paper the present multiparty administrative laws and regulations of the relevant provisions of the administrative enforcement, running a combination of administrative enforcement's problems and deficiencies, expounded on the introduction of the principle of proportionality and necessity of a number of scenarios, but our administrative system has still not on a clear concept of the principle of proportionality. In the practice of administrative law enforcement and administrative proceedings, people do not pay sufficient attention. In just the past two years, the principle of proportionality generated some attention of scholars. Based on the study from the academics, the paper made some analysis to the application of the principle. This paper is divided into four parts.The first part focused on analysis and summary of the history and contents of the principle of proportionality. First the paper elaborated the concept of the principle of proportionality. "The considerations are about the measures of national purpose and the means to achieve their goals have taken on the burden of people." The principles include: the appropriate principle, the principles of necessity, and the narrow proportionality principle. Since then the paper has done review from history of the principle of proportionality. Based on the history of the principle of proportionality, and it will enable us to have a more direct knowledge and understanding.The second part gives an analysis of the principle of proportionality between the developed countries and regions in the application of administrative law. This section includes the principle of proportionality in Germany, France, Japan, China's Taiwan region and the specific requirements of these countries and, where applicable, and the principle of proportionality in all countries and the role and status. China's drawn inspiration comes from the introduction of proportional original ------ Feasibility Analysis: One is that China's traditional ideology does not exclude principle of proportionality; Secondly, the concept of "governing the country according to law building a socialist country ruled by law" in the Constitution was established, and it is a theoretical foundation for the principle of proportionality. And it also provides a good living environment for the principle of proportionality; Third, "balance theory" can support the principle of proportionality in the administrative field; Fourth, in the current legislation, there are legal provisions embodied in the principle of proportionality factor. It finds a theoretical support for the application of the principle of proportionality in our country.Part III focuses on the necessity for establishing principle of proportionality in the administrative enforcement. First, the concept of administrative enforcement is that "certain administrative subject in order to finishing administrative purposes to take measures to control the liberty, property and other coercive measures. This concept includes the following features: First, citizens, legal persons and other organizations do not perform administrative duties, or at the state or at some risk to the community, economic order and the others, or are likely to pose a health or safety hazard to the premise; Secondly, Chief enforcement for the purpose of enforcing citizens, legal persons or other organizations to fulfill their obligations under the administrative, required to achieve the state administration; Thirdly, the direct nature tell the administrative enforcement from other acts. The enforcement talking about here is not subjective, but can take an objective means. Without corresponding to the order or not to succeed, administration may be enforcement strength." To do an analysis of the problems existing in China's enforcement, these include: the confusion of the creation of administrative, the confusion of enforcement agencies in the implementation, lack of a unified legislation on enforcement administrative due process provisions. Finally, expounding China's administrative enforcement in China: the need to establish the principle of proportionality is meet the fairness and efficiency; control the abuse of executive power. Resulting in administrative laws and regulations to standardize the application of the principle of proportionality in the exercise of administrative discretion is indeed a necessity.The fourth part analyzes the perfection of principle of proportionality in the administrative enforcement. This paper describes the principle of proportionality for the contents of the administrative enforcement requirements: First, the appropriate means of principle of enforcement. Enforcement approach is appropriate in light of actual implementation of the principle of the case. The goal is to enable enforcement administrative relative or to fulfill obligations and fulfill their obligations to achieve the same status for the eventual realization of public administration objective. Enforcement approach adopted by the executive authorities must contribute to the realization of this objective. Otherwise, it will constitute abuse of power; second, the need for enforcement means. The principle is the need for enforcement approach requiring the executive to adopt a enforcement minimum damage to civil rights; Third, enforcement approach narrow principle of proportionality, a enforcement approach to prohibit excessive executive in principle to take coercive means, not excessive. Does not made the infringement for citizens exceed the value of administrative purposes. This is the embodiment of the narrow principle of proportionality administrative. Secondly, the improvement of administrative: Some thoughts on the principle of proportionality should be expressly provided in the "Administrative Enforcement Law"; administrative procedure that implementation of emergency should be proportional; the channel should follow the principle of proportionality. Administrative enforcement integrated with the principle of proportionality can better perform his administrative enforcement functions.