On The Administrative Law Principle Of Proportionality

In the power system of modern state, the executive power is very strong, which is an irrefutable fact. With its alternative characteristic, free judgment becomes most prominent and active part in the executive power and acts on the administrative behavior extensively. However, just like what the great thinker Montesquieu said, all power is easy to be abused, especially in the field of free judgment, administrative power is easier to be abused. How to tackle this kind of state? On one hand we can not discard the free judgment, we can not let the abuse unchecked on the other hand. It is wise to take suitable measure to control free judgment, so we can give full play to the positive utility and protect citizen's fundamental right to the maximum extent. It is very difficult for the principle of reasonableness, which has been held a long-term position in our administrative law, to take on the great responsibility of controlling free judgment efficiently with its insurmountable theoretic and practical limitation. On the contrary, the principle of proportionality, being "the king principle" in administrative law and originating from Germany, is playing the prominent role in controlling free judgment and advancing the cause of protecting human rights with its mature theory system and objective operational standard. And it also has the value of the gold break point in treating public interest and the citizen's basic rights. "The learning from others, may attack the jade." If we draw lessons from the standard that the other countries are examined by practice, we can get twice the result with half the effort.In free judgment, administrator certainly will face the condition that choose one suitable mean in the many kinds of administration means. How to choose behavioral means, method and range? When administrative purpose and the citizen's interests pursued are set against, how to weigh various interests involved in an all-round way? These questions obviously involve the measurement of law benefit. The principle of proportionality offers the concrete evaluation criterion how to weigh the interests. Because the principle of proportionality weigh the interests between the citizen's rights and public interests pursued relative people that encroach on, require means with purpose that achieve balanced relation, and require relative people minimum to encroach on .This offers for administrator how to exercise , cut out standard to measure right, and can make citizen judge administrative organ proper or not...