The Introduction Of The Principle Of Proportionality In China's Criminal Coercive Measures

The principle of proportionality, which was originated in German Police Law, is the highest guiding principle of Public Law. With the development of the society, the theory of the proportionality principle has been improved step by step, and it has spreaded from the Administrative Law to other fields. The principle of proportionality emphasizes the relationship between the purpose and means and its essence is the proper exercise of power by the state to maintain social orders, protect human rights and achieve a balance between purposes and measures. In modern times, it is the universal practice to apply the principle of proportionality into the field of criminal justice, especially in the criminal coercive measures. According to the comparison with other countries and areas, we can see our weak points in the principle of proportionality in the criminal coercive measures. On the basis of the analysis of the necessity and feasibility to introduce the principle of proportionality to the coercive measures, related suggestions are put forward about building our system of criminal coercive measures. The body of this article is composed of four chapters. Chapter 1 describes the meaning and function of the principle of proportionality, the generation, development and theoretical basis about the principle of proportionality. Generally speaking, the principle of proportionality can be further invited into three Sub-principles: the principle of suitability , the principle of necessity and the principle of proportionality in a limited sense. Its function can be reflected in two aspects: to maximize the protection of civil rights and to restraint the exercise of public power .The principle of proportionality was derived from the German Police Law, and later in the Civil Law and Common Law it had been further developed. The theoretical basis for the principle of proportionality is mainly embodied in the three aspects: the principle of the rule of law, the principle of protecting basic rights and the principle of fairness and justice.Chapter 2 discusses the application of the principle of proportionality in criminal coercive measures from the principles of suitability, necessity and proportionality in a limited sense. First section takes France, Germany, China's Macao, as well as international literature as examples, in order to explore the application of the principle of suitability and China's gap in the legislative and judicial practice. Then, the second section describes the meaning of the principle of necessity. According to the comparison with Macau, Japan, and France, this section points out our weak points in the criminal coercive measures .Finally, exploring the application of the principle of proportionality in a limited sense in the criminal coercive measures, after the comparison with Austria, Germany, Japan and other countries, the third section analyses our weak points in this aspect.Chapter 3 analyzes the necessity and feasibility about introducing the principle of proportionality into China's criminal coercive measures. In order to better protect the human rights, restrict the discretion power, reflect judicial justice and carry out both lenient and strict criminal policy, it becomes necessary to introduce the principle of proportionality. Nowadays China pay more attention to the protection of human rights and the criminal rights protection of the constitutional trend becomes more and more obvious. All of these bring the social environment and the Legal basis to the introduction of the principle of proportionality .Based on the above-mentioned analysis, A conclusion can be drawn: The principle of proportionality should be introduced in criminal coercive measures of China.Chapter 4, based on the reference of relevant theory and the advanced extraterritorial research results, proposes the suggestions on how to introduce the principle of proportionality into China's criminal coercive measures. The analysis is mainly about the basic principles of criminal coercive measures, standardization of the existing system and the establishment of related supporting systems.