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On The Administrative Law Principle Of Proportionality Study

Posted on:2006-04-20Degree:MasterType:Thesis
Country:ChinaCandidate:P F ZhangFull Text:PDF
GTID:2206360155469685Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
The principle of proportionality is an important principle in administrative law of the developed countries, especially of the nations and districts of continental law system. This principle had won the honor of "principle of crown" and "emperor's clause" because of its function to control administrative discretion and protect the civil rights. Nevertheless, this principle has not obtain enough attention in our country. As an attempt to inquire into the principle of proportionality systematically, the fundamental theory of this principle is introduced and analyzed in the article. After it, the legal status and applicable scope of the principle are defined. On the foundation of the front discussions, the principle of reasonableness is compared with the principle of proportionality. The conclusion is the principle of proportionality ought to be established as the basic principle of the administrative law of China, and it should be carried out in the practice to realize the rule of administrative law. This article is composed of five parts.Part Ⅰ . The origin and connotation of proportional principle. This part consists mainly of the followings. The meaning of the proportional principle is related to the constitutionalism, and the origin it is the concept of justice. The principle of proportionality was firstly affirmed as the basic principle of administrative law inGermany. This principle is composed of three secondary principles-the principle ofsuitability, the principle of necessity and the principle of proportionality in narrow sense. The three-divide method was called three-phase theory. The three-phase theory is superior to the two-phase theory, and should be affirmed.Part Ⅱ. The display of the proportional principle in the developed countries and districts— the development of this principle is related concurrently. In this part, the author comprehensively introduces the displays of the proportional principle in the developed countries, especially in the nations and districts of continental law system. Meanwhile the development of this principle is elaborates.Part Ⅲ. The legal status and applicable scope of the proportional principle. These two questions connects closely and corresponds with each other. As to the legalstatus, the proportional principle ought to be the basic principle of the administrative law, but not the principle of constitution. As to the applicable scope, this principle should be applied in the whole field of the administrative law, including the interests-conferring administration.Part IV. The comparison and analysis between the principle of proportionalityand the principle of reasonableness-----the principle of proportionality should be thebasic principle of the administrative law in China. Firstly, there is a simple review on the basic principle theory of the administrative law in China. Secondly, after introducing the principle of reasonableness and its status in the administrative law of common law system, the author gives a deep comparison between the principle of proportionality and the principle of reasonableness. Then the author affirms the advantage of the proportional principle from comparison, and puts forward the view of taking this principle as the basic principle of administrative law in China. At last, the significance of establishing the proportional principle as the administrative law basic principle in China is expounded.Part V. The application of proportional principle in the practice to realize the rule of administrative law in China. As the basic principle of the administrative law, the proportional principle should be prescribed clearly and definitely in the administrative law of China. The administrative subject ought to carry out all sorts of administrative acts accord to the request of the proportional principle. In the judicial review, the court could control and restrict the administrative discretion through the application of the proportional principle. Meanwhile, the court should also be restricted by some institutions. So that, the confliction between administrative discretion and judicial discretion could be moderated.
Keywords/Search Tags:principle of proportionality, legal status, principle of reasonableness, basic principle of administrative law, application
PDF Full Text Request
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