On The Principle Of Proportionality In Administrative Law

In modern society, the administrative power as one of the most powerful states powers, becomes expanded sharply with the administrative affairs increasing, so does the power of free administration (PFA). All this may be lead to the possibility of infringing citizen's rights greatly. So we must face and solve these problems in the process of realizing the administration by law.As to this, many countries have founded corresponding legal principle to enforce the administrative power, such as the doctrine of ultra vires in England, the principle of proportionality in Germany. Especially the principle of proportionality plays an important role among them. Since the principle of proportionality has been proposed and established in the field of German public laws in the 19th century, it has been applied in many countries to some degree.As the exquisite tool of weighing interests pf conflict proportion, the principle of proportionality should occupy an important status in our country's administrative law. But there is not clear concept about it so far in out country's administrative law. Therefore, the author tries analyzing the meaning, historical development, theoretical foundation, legal statuses and the practical situation of the principle in the comparative method. On that basis it examines the theoretical research, foundation legislation, the current situation and probes into the values of ensuring human rights and administration by law, and tries setting up the principle of the suitable constitutional government system of our country.The thesis is composed of five parts with 37000 words approximately.Part I: Concept and contents of the principle of proportionality. In this part, the author first generalizes the concepts of the principle of proportionality from mathematics and law angle, and the put it into administrative law to explain the principle concrete implication. Afterthat, the author analyses the main contents of the principle of proportionality, and simply evaluate its contents. At last, the author point out own view: agrees to and supports the three-fold division theory of the principle of proportionality.Part II :Historical development and application of the principle of proportionality .In theory the author briefly introduce that four administrative jurists made great contribution to the its contents in different historical stages, also evaluated their achievements; In practice the analyzes case law system and legislative system how to make the principle develop, ripe and perfect. At last the thesis selects the application in the countries of the continental-law and common-law system to go into details.Part III :Localization and application scope of the principle of proportionality .The author recommends three theory of the principle of proportionality in the law system: constitutional principle, special principle and basic principle in administrative law.Part IV: Basic theories of the principle of proportionality. In this part, the author considers that the principle is based on the theory of rule by law, the principle of equality and protecting fundamental rights. As to the theory in administrative law, the thesis mainly explains some basic concepts closely related to the principle.Part V: First in theory, the author compares the principle of proportionality with the principle of administrative by law and equality and protecting basic rights in order to show similarities and differences among them. After summarizing the present research on the principle of proportionality in China, the author assumes that the principle has important value in China administrative law .Secondly the paper probes into the issue from administrative enforcement of law and administrative justice in details .At last, the author suggests that we should absorb the beneficial experience for reference combining with the practice situation in our country and develop laws through judgment which offer the suggestion to introduce the principle of proportionality.