The Study Of The Principle Of Proportionality In Administrative Law

In the power system of modern states, the executive power is often very strong, which is an irrefutable fact. With its selective specialty, free judgment becomes most prominent and active part in the executive power and acts on the administrative behavior extensively. However, just as what the great thinker Montesquieu said, all power is easily to be abused. How to tackle this kind of state? On one hand we can't discard the free judgment; and on the other hand we cannot let the abuse unchecked. It is wise to take suitable measure to control free judgment, so that we can give full play to the utility of free judgment and protect citizen's fundamental right to the maximum extent.How to balance the relationship between administrative power and administrative rights of administrative related party becomes an important topic in the field of administrative law. Almost all the legal system and institutions in administrative law, including the principle of proportionality in administrative law, are established in this relationship. As the important principle of cultural tradition for hundreds of years, the principle of proportionality in administrative law was coming from the Charter of United Kingdom of Great Britain and Northern Ireland. But as used as principle of law it began from German Police Law. The principle of proportionality is to balance the relationship between the state administrative power and the related party's administrative rights through"restriction on restriction", and finally reaching the aim of protecting the rights of administrative related party and achieving justice. It has been proved by the practice in many countries that the principle of proportionality had been played an important role in regulating the exertion of administrative power and protective administrative rights of administrative related party.After the Second World War, the above mentioned principle developed more contents and was applicable to more fields, especially in the field of the administrative law. As an important method in controlling administrative judgment, the principle of proportionality embodies the essence justice of law, and is studied by most of the developed countries. This principle had won the honor of"Principle of Crown"and"Emperor's Clause"because of its function to protect civil rights. Nevertheless, this principle has not obtained enough attention in our country.There are four parts composing the article.Part One: The concept of principle of proportionality in administrative law.In the paper, the semantics analysis of the principle of proportionality in administrative law is given. Besides analyzing its connotation of conventional ones, the author considers that the principle of proportionality is applicable in administrative behavior not only of its controlling, but also of its benefit. In addition, the discussing of basic theories of the principle of proportionality is given. This part contains the basic theories in jurisprudence, in constitutional law and in administrative law. It introduces the jurisprudence foundation for the said principle, which argues that constitution philosophy related to the national power and citizen right is the philosophy and language resources dwelled by the said principle and the thought resource reflecting the control of country and protection of private right. Besides, the author considers that the principle is based on the theory of rule law, the principle of equality and protecting of fundamental rights.Part Two: The historical development of the principle of proportionality in administrative lawAccording to the history material, the sprout of the principle of proportionality can traced back to Sullen in Athens. Aristotle also considered it. As a law and regulation, the principle of proportionality was written in the Charter of United Kingdom. But in Germany, this principle became a mature law theory.This part introduces the origin, development and spread of the principle of proportionality. From the viewpoint of history, the author searches its origin and development, and reviews how the principle of proportionality originated from the field of German Police Laws and extended to many other law fields and how it started from the principle of proportionality and ended with three sub-principles. The principle of proportionality had been accepted by and spread to many countries. Here the author selects and describes the continental-law and common-law system in details.Part Three: The collation and stipulation of the principle of proportionality in administrative lawThe scholars in China and other countries in the world have different ideas about the sub-principles of the principle of proportionality in the administrative system. As a whole, there are three ideas existed, which are the two-divide theory, the three-divide theory and the four-divide theory. In this part, the author puts forward her own ideas in the basis of other scholar's ideas. The author discusses the three-divide theory in details. According to the three-divide theory, the principle of proportionality in administrative law contains the principle of suitability, the principle of necessity and the principle of proportionality in a limited sense. Then the author compares and comments all the theories. The author mainly focuses on the principle of necessity and the principle of proportionality in a limited sense, through absorbing and borrowing the research products of predecessors, such as the balancing of interests, the possibility of anticipation, the theory of interaction and other theories.Part Four: Embodiment of the principle of proportionality in administrative law in our countryThe author discusses the embodiment of the principle of proportionality in administrative law in our country in the administrative legislature, the administrative enforcement and the administrative justice in details. In administrative legislature, we can bring into the principle of proportionality by legislation and judicial interpretation on earth. In administrative enforcement, the principle must be used in discretionary and award interest action. In the administrative justice, the principle can be used in administrative litigation, administrative reconsideration and administrative ruling.Finally, the author suggests that we should absorb the beneficial experience of other countries for reference combining with the practical situation of our country and developing laws through judgment which offers the suggestion to introduce the principle of proportionality.