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The Principle Of Proportionality's Introduction In Investigation Stage

Posted on:2008-03-12Degree:MasterType:Thesis
Country:ChinaCandidate:X S LiuFull Text:PDF
GTID:2166360215964013Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The principle of proportionality is the fairness and justice of concrete. It rises from German police law. After several ages of development, the connotation of this principle becomes much more abundant, and its application has also been enlarged greatly. The principle of proportionality regulates the relationship between public interests and private interests as well as the relationship between means and purpose. It requires that these two pairs of relationships should be coordinate between its two sides respective. This article introduces the origin and development, meaning, theoretical foundation and legal position of this principle, as well as its expansion and application outside Germany. Upon such basis, the author first demonstrates the necessity and feasibility of the principle of proportionality, and then ofers some suggestions. Along withthe introduction and the conclusion, the body of this article is composed of four sections.The first section regards the constant enrichment and development of the principle of proportion as its main concern. It describes briefly the development of the principle of proportionality. This process of development initiated with the principle of necessity, with the principle of suitability and the narrow principle of proportionality incorporated constantly, and finally ended with the principle of proportionality commanding the other three sub-principles. Thus the principle of proportionality can be divided into three sub-principles, namely, principle of necessity, principle of suitability, and principle of proportionality in its narrow sense. On the basis of the general theory, the author ofers a detailed argumentation about the connotation of the principle of proportionality.The second section discusses the theoretical foundation of the principle of proportionality. It is the real significance of the rule of law, is a gauge that balance of interests from the state power and civil rights, followed by a discussion of the principle of proportionality itself to the pursuit of value, it has always been the ultimate goal of human rights. Fairness and justice is the cornerstone of the principle of proportionality.The third section takes such countries and regions as Japan, Taiwan, Italy, and Britain as examples, in order to introduce the expansion and the application of the principle of proportionality other than Germany. The author's aim is to demonstrate the tendency of expansion and development of the principle of proportionality, and learn from the other countries and regions to make preparation for the introduction of this principle into our country.The fourth section firstly introduce the necessity and feasibility of the introduction of the principle. I believe that In order to build a more fair legal environment, the better to protect the rights of citizens, to further enhance the quality of law enforcement, it's very necessary to introduce the principle of proportionality. In fact, the basic principles of the International Criminal trend, China's Criminal Procedure Law and the concept of fairness and justice in our country under the rule of law and the concept of proportionality factors include, in Chinese laws, the introduction of the principle of proportionality is feasible. Finally, the author proposes the means and methods of introducing the principle of proportionality, and finds out a practical way to introduce this principle.
Keywords/Search Tags:the principle of proportionality, origin and development, law value, introduce ideas
PDF Full Text Request
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