On The Administrative Law Principle Of Proportionality

The principle of proportionality, as one of important principles in administrative law, has aroused people's concern increasingly, however, the present articles only introduce it in general terms, but lacks the combination with the concrete system of our country. This essay emphatically expounds the relationship among the proportional principle, the administrative legitimate principle and the administrative reasonable principle, besides talking about other questions of the proportional principle, and puts forwards constructive conception on how to draw into the principle of proportionality when constructing the system.This articles falls into six divisions.Part one: the concept and connotation of proportional principle. This part introduces the meaning of proportional principle and its three secondaryprinciples--the principle of appropriation, the principle of necessity, the principleof equilibrium, and elaborates the three secondary principles. At last, it comments on the three-divide of the proportional principle.Part two: the historic development of proportional principle. It explains generally the development of proportional principle from theory and the stipulation of substantial law aspects.Part three: the status and applicable scope of the proportional principle. The position of the proportional principle connects closely with the applicable scope of the proportional principle even to the extent that they are the diverse aspects of one question. This part clarifies that the proportional principle should be a constitutional principle, or a basic principle of administrative law or a concrete principle of administrative law, and interprets the applicable scope of proportional principle adjusting to its standing.Part four: the analysis to the necessity of drawing into the proportional principle. This part states the necessity of drawing into the proportional principle from theory and practice aspects first of all, then it shows that neither administrative legal principle nor administrative reasonable principle can contain the contents of the proportional principle, and that the role of the proportional principle can not be replaced by that of legal principle and reasonable principle by differentiating the relationship between these principles, therefore, it is inevitable to lead into the proportional principles.Part five: the analysis to the feasibility of bringing into the proportional principle. There are many factors supporting to channel into the principle of proportionality in china, such as traditional thought of china, the theory of balance in administrative law, the stipulation of law in force and the concerned case in justice practice.Part six: the method and channel of drawing into the proportional principle. This part elaborates which grade the proportional principle should be when constructing the concrete system in china, and it expounds which way is appropriate by legislation or by judicial interpretation on earth when bringing into the proportional principle.