The Application Of Proportional Principle In Administrative Law

The administrative power is necessary for a modern state to function normally and the unlimited use of the civil rights will lead to "anarchy", so the civil rights must be restricted by the administrative power. However, the administrative power is a mighty kind of state public power and discretion is its core. The administrative power is easy to be abused to infringe upon the civil rights. The principle of proportionality 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. As we know, The principle of proportionality is an important principle in administrative law of the developed countries, especially of the nations and districts of continental law system. This principle had won the honor of "principle of crown" and "emperor's clause" because of its function to control administrative discretion and protect the civil rights. It 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.It will to inquire into the principle of proportionality systematically, the fundamental theory of this principle is introduced and analyzed in the article. After it, theory basic and legal status is analyzed. Then it analyzed the present situation in China and the necessity and possibility that lead the principle of proportionality to administrative law. The conclusion is the principle of proportionality ought to be established as the basic principle of the administrative law of China, and it should be carried out in the practice to realize the rule of administrative law. This article is composed of four parts:The prolegomenon of POP. This article introduces the topics of background and significance, overviews the dynamic studies at home and abroad and has a clear idea of the research ideas and the research methods of this article.The origin and connotation of POP. The origin of POP consists mainly of the origin of thought and system. The connotation of POP is extensive and the principle is composed of three secondary principles——the principle of suitability, the principle of necessity and the principle of proportionality in narrow sense which contact closely and form the principle of proportionality in broad sense.The theory basic and legal status of the proportional principle. This part introduces the theory basic of the proportional principle in constitution and administrative law. As to the legal status, the proportional principle ought to be the basic principle of the administrative law and it is suitable in the whole administrative law.The application of proportional principle in the practice to realize the rule of administrative law in China. Firstly, conclude the present situation in China; Secondly, analyze the necessity and possibility that lead the principle of proportionality to administrative law; Thirdly, the application of proportional principle in the practice to realize the rule of administrative law in China. There are following respects about the third part: as the basic principle of the administrative law, the proportional principle should be prescribed clearly and definitely in the administrative law of China. The administrative subject ought to carry out all sorts of administrative acts accord to the request of the proportional principle. In the judicial review, the court could control and restrict the administrative discretion through the application of the proportional principle. Meanwhile, the court should also be restricted by some institutions. So that, the confliction between administrative discretion and judicial discretion could be moderated.