On The Principle Of Proportionality In Administrative Law

as the "imperial clause" of public law, the principle of proportionality reflect justice, equality and the protection of human rights under the meaning of rule by law. In the control of the executive discretion and protect the legitimate rights of citizens it has incomparable superiority of the other principles. The principle of proportionality originated from German administrative, learning the essence of the concept of rule by law. During the application of process in extraterritorial, it has been expanded space and improved the content. Except the introduction the article consist of four parts to describe the principle of proportionality.Part one, from the view of basic concept to comb the evolution of conception of principle of proportionality and its including the appropriateness, necessity and narrow proportion of the core content. Further from the ideological, theoretical, institutional three aspects traces the source of the principle of proportionality, loading on the foundation for the further research.Part two, from the theoretical basis of constitutional and administrative law as well as the theoretical basis of the theoretical basis of economic analysis of the principle to make in-depth theoretical exploration of proportionality. First of all this part start from the relationship between the principle of proportionality and rule of law, the right of power relations and the human rights which are three basic but important constitutional concept to illustrate the principle of proportionality have a clear basis constitutional spirit. Then in the field of theoretical administrative law, taking the theory of control executive power and the balance theory as the starting point to find out that the principle of proportionality is not only gained the strong support from the theory of control executive, but also have a natural link with the balance theory which is widely shared among the administrative law scholars in China. The third point is from the theoretical analysis of Law and Economics, modeling the legal arena as a market at economic sense.We take efficiency as criteria tools to judging the activities of administrative body and administrative counterpart in the legal market. This article attempts to break the obstacles in system and theory. From an economic point of view and by economics, methods to re-examine the principle of proportionality, grasping a more practical paradigm for the three sub-principlesPart three, Introducing the survival and development of the principle proportionality in foreign country, pointing out its limitations from the negative view. And putting forward my views to overcome these limitations, which is providing a reference for us to grasp the positive and negative aspects of the principle of proportionality.Part three, discussing the necessity and feasibility of introducing the principle of proportionality to China, and put my own views on the ways and means. On the basis of earlier studies, I put forward my own views and perspectives on levels and means of introducing the principle of proportionality, during conducted a specific institutional framework.