On The Administrative Law Principle Of Proportionality

Administrative power as a kind of the most mighty and powerful state public power in the modern state is necessary for a modern state to function normally. With the expansion of administrative power, the Chief discretionary space has been sharply expanded. As the core of administrative law, discretion is easy to be abused in the exercise of civil rights to inevitably infringe upon the civil rights. Therefore, there need to be restriction on the administrative power. The principle of proportionality is just to balance the relationship between state power and civil rights through adjusting the relationship of means and ends, private interests and public interest, demanding the coordination of means and ends, private interests and public interests, and finally to reach the aim of protecting the civil rights and achieving real justice. At the same time, it has been proved by the practice in many countries that the POP has been played an important role in regulating the exertion of administrative power and protecting civil rights. but the basic principles of administrative law in China has almost disappeared. the abuse of discretion is threatening and infringing upon the civil rights. Therefore, it is of particularly great importance to establish the principle of proportionality in China.The thesis introduces concept and contents of the principle of proportionality, theoretical foundation, historical development and application in the other countries through the historic, comparative and empirical analytic methods. On that basis, analyzing legal and theoretical research, the current practical situation of the administrative law in china and analyze the reasons for such a phenomenon exists. Thus in detail introduces the necessity and feasibility of establishing a principle of proportionality principle in our country, legislative and judicial practice use. At last briefly introduces the limitations of this principle and the way of establishing the principle. The thesis is composed of four chapters besides"Introduction"and"the postscript". ChapterⅠis an introduction of the principle of proportionality. first, The writer defines the concept of the principle of proportionality. Second, the traditional and modern connotations of the principle of proportionality, the main elements of the principle of proportionality with three sub-principles. Finally from the constitutional and administrative law aspects of the theory of constructing the basis of the principle of proportionality. In its constitution so as to provide a solid theoretical foundation. In the field of administrative law principles developed for the accurate and give the necessary theoretical support, played an important role in promoting this.ChapterⅡis a comprehensive introduction to the evolution and the principle of proportionality and practice in other countries(regions). First, From the viewpoint of history, the writer researches on its origin and development. Three elements of this principle for the development in history and sorted out to better understand and grasp the essence of the principles and development trends. Second, the comparison of the principle of proportionality in all countries(regions) in practice, and summarizes the characteristics of the application of the principles in all countries, explore common law, which was to pave the way to establishing the principle.ChapterⅢis to establish and establish the reasons of establishment of the principle of proportionality in China. This paper is part of the focus. First writer introduces legal and theoretical research, the current practical situation of the administrative law in china, learned that the principle of proportionality has not been paid enough attention in academic field and there is even less embodiment in China. Thus analyzing the reasons for such a phenomenon. Second, in theory, the author gives a deep comparison between the principle of proportionality and the principle of reasonableness of the continental law system and Chinese, learned that the principle of reasonable in China has apparent shortcomings in controlling Chief Administrative discretion and the advantage of the principle of proportionality. So in this respect the principle need to be established. The author also demonstrated in detail in the necessity and feasibility of establishing the principle of proportionality.ChapterⅣis an analysis on the application of the principle of proportionality in China's administrative law, limitations of this principle and the way of establishing the principle. First the author probes into the issue from administrative enforcement of law and the administrative justice to explore; followed by an analysis of the limitations of the principle in practice. Finally, it expounds which way is appropriate by legislation or by judicial interpretation on earth when establishing the principle of proportionality.