On The Administrative Law Principle Of Proportionality

The principle of proportionality is deemed as "king clause" in the public laws and one of the most principles to safeguard human right. It rises from German police law. After several ages of development, the connotation of this principle becomes much more abundant. The principle of proportionality regulates the relationship between public interests and private interests as well as the relationship between means and purpose. It requires that these two pairs of relationships should be coordinate between its two sides respectively. Chinese mainland's administrative laws, however, haven't yet made response to such a key issue, leaving a meaningful task in the study of administrative laws: what factors caused this situation and what shall we do? This article introduces the development, meaning, theoretical foundation and legal position of this principle, as well as its expansion and application in many countries. Upon such basis, the author tells us 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. This principle should be a basic principle of administrative law in china. In administrative legislature, we can bring into the proportional principle by legislation and judicial interpretation on earth. In administrative enforcement, the principle must be used in discretionary and award interest action. In administrative justice, the principle can be used in administrative litigation, administrative reconsideration and administrative ruling.