On The Application Of Proportionality Principle In Administrative Trial

The principle of law and the rule of law is not the whole of a complete set of legal system, but it is the core of the legal system. Especially the legal principle, along with the Dworkin "principle" the construction of jurisprudence has been pushed to the front of the legal research. Established in Germany, the principle of proportionality, since the 1882 "cross Hill case" began to open the academic and Judicial Studies and discussion of the prelude. With a series of cases and scholars’ research, the principle of proportionality is mature, and is called "the king of administrative law", "the crown of public law" ". In the administrative trial, the principle of proportionality is to refer to the principle of proportionality in the form of "some form" quoted to the administrative judgment of the referee basis. But the well-known principles of law to the rule of law has the guidance, principle and operation, in order to prevent judicial discretion abused, scholars believe that in judicial trial shall refuse the application of legal principles.But the principle of proportionality is just the opposite. Due to the professionalism of the judiciary independence and other features, in the control of the administrative actions of the administrative organs has inherent advantages, and by the principle of proportionality applicable to constraint "control of judicial discretion", fundamentally speaking is also a constraint on the acts of administrative litigation, to prevent the arbitrariness and abuse. But at present, the principle of proportionality in the administrative trial of the problem of lack of complete methodology, the future, you can rely on the principle of proportion of the relevant legal basis, to find the principle of the application of the principle of administrative justice in the path.This paper is divided into six parts.The first part is the significance of the principle of proportion in the administrative trial. First of all, the author defines the connotation of the principle of proportionality, and then from the point of view of the principle of proportionality, the principle of proportionality as a legal principle, in the operation of the law can play the role of loopholes to fill. The core of the principle of proportionality is the measure of interest, which is the result of fair and reasonable, which is embodied in the principle of proportionality in the face of discretion.The second part is the current situation and analysis of the application of the principle of proportionality in the administrative trial. Through the existing judicial practice in our country, the different forms of application of the principle of proportionality can be classified as direct and indirect application. According to the judicial practice in our country, the application of the principle of proportionality in the administrative trial is summarized.The third part is the dilemma of the application of the principle of proportionality in China’s administrative trial. Through positivist analysis, sociological research methods, clear found difficulties at present in our country in the administrative trial application of the principle of proportionality difficulties include the theoretical foundation is weak, limitations of traditional thinking, proportion principle and meaning unclear definition, it is difficult to meet the new "action" requirement, and judges its lack of professional knowledge and other five areas.The fourth part is the principle of proportionality in the administrative trial analysis, this part is from the legal point of view, the expansion of the legal principle in the judicial application of the general and the exception of the two cases. For us to find the principle of proportionality in the administrative trial of the application of the path to lay the theoretical foundation.The fifth part is the analysis of the application of the principle of proportionality in China’s administrative trial. In view of the present predicament. The author also puts forward five corresponding to the path analysis, including the absorption theory of balancing of interests, to reconstruct the administrative trial methodology, take legislative skills, giving full play to the function of the principle of proportionality constraints and to build a new type of burden of proof.The sixth part is the conclusion, which states the introduction and expectation of the proportion principle in the administrative trial.