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Investigation Of The Principle Of Proportionality Study

Posted on:2009-01-18Degree:MasterType:Thesis
Country:ChinaCandidate:Z M JiangFull Text:PDF
GTID:2206360248951136Subject:Investigation
Abstract/Summary:PDF Full Text Request
The principle of proportionality, which is a fundamental principle of modern administrative law, originated in the early 19th century by the German police. Its core places emphasis on allocating and balancing the state power and individual rights by proportion, so as to achieve the purpose of limit state power and protection of individual rights. The originator of Germany administrative law Otto Mayer in his famous "German administrative law", referred to the principle of proportionality as the "the imperial principle" of administrative law. Along with the practice of the principle of proportionality and development, it has gradually infiltrated the criminal law, civil law and the formulation of related laws and interpretation of the Constitution field. Therefore, it should be said that, the principle of proportionality applies to the legislative, executive and judiciary in all areas of one of the basic principles.The principle of proportionality has been well used in the criminal law, especially in the criminal proceedings as a control state power exercised a very important principle, and its broad application of the vitality of the show is that it served as an effective balance between national power and the rights of the individual control valve. The detection authority, as one of rather violation state power, in the course of its operation was prone to willful violations of the rights of the citizens, and with China's rise in the level of democracy and rule of law, strengthening to study the proportion between the civil rights and the detection authority is particularly necessary. The key question in the current study of the criminal investigation is how to control the exercise of detection authority in the appropriate and within the limits of the necessary, and appropriate to protect the legitimate rights and interests of citizens. Particularly, when the legal have to leave considerable free space to the detector, how can we guarantee their freedom of discretion is appropriate, and will not be unscrupulous to pursue justice; the total cost will not take the interests of the above. This needs the principle of proportionality to control. Based on the principle of proportionality in the investigation in comparative studies can create a more scientific and rational detection system which will accord with the natural justice, and enable the detection of more standardized and more effective, and more effectively protect the legitimate rights and interests of citizens. So that the investigation can be run right in the control of crime and the protection of human rights and maintain a reasonable and balanced state. Specifically, the severity of the measures means which is used in the detection must be the same as the threat of crime and the degree of strength of suspected, not only to comply with the purpose of criminal coercive measures, but also to the interests of the violations and the interests protected by the suit.The purpose of studying the principle of proportionality in this paper is precisely to seek the balance, or a critical point, between the control of crime and the protection of human rights in the investigation. The article begins with the connotation and origin of the principle of proportionality and end-result at the proportion of construction of investigate measures, as the purpose of analyzing and demonstrating the necessity and feasibility of the principle of proportionality in the criminal investigation and the embodiment of the principle of proportionality in detection system and detection of specific measures. The full text is divided into four parts:The first chapter in-depth interprets the principle of proportionality. First in-depth analysis of the connotation of the proportionality principle: with the purpose of proper means of the principle, the necessity principle in which the means cause the smallest damage and the principle of proportionality stricto sensu in which the damage caused by the means must smaller than the interests of the community. Then the article analyzes the origin and development of the principle of proportionality, and discusses the meaning of the principle of proportionality in the development process and the scope of applicability of the continuous expansion of the course. It is mainly to explain the principle of proportionality is a very wide-ranging principle, and it is one of fundamental principles in the establishment of an orderly society, as a matting of discussing below. Finally, it analyzes the current research and the status quo of practice of the principles of proportionality in brief.The second chapter major discusses the necessity of the introduction of the principle of proportionality in the investigation. First in the demand of modern concept of the rule of law, the article discusses the essentiality and necessity of the principle of proportionality in investigation in three perspectives which are the adjustment and norms of the investigation for the rule of law needing the principle of proportionality and, the protection of human rights concepts and the balance of the value of the pursuit of the investigation. Secondly, from the operational characteristics of the investigation right perspective, discusses the investigation of the operation of the executive power, and the result is educed naturally that to run the investigation must be necessary to regulate the use of the principle of proportionality conclusions.The third chapter discusses the relationship between the principle of proportionality and the detection systems from a macro point. In the investigation of the system, it analyzes the status quo, defects and issues of the relationship between the inquisitor and the police, prosecution and the defense, and the horizontal and vertical relationship of the detection organs in current system of investigation, and analyzes the rationality of the investigation system in accordance with the connotation and the request of the principle of proportionality, and brings forward a number of ideas to adjustment and build the investigation system. In the investigation procedures, in-depth analysis of China's current investigation procedures exists some shortcomings and loopholes of fuzzy of qualitative and positioning, tectonic models, the pursuit of value, and also analyzes the investigation procedure in accordance with the connotation of the principle of proportionality. Finally, it brings forward the complete process of investigation by the need for some reform measures.The forth chapter from relatively microscopic level to discusses the relationship between the principle of proportionality and the investigative measures. It should be said that this part is the core of the article. All previous expositions should end this chapter of the content. It is needless to say that discussing on the principle of proportionality is of the need to pave the way for the below. It is essential for discussing the detection measures, which can effectively comply with the principle of proportionality, to analyze the detection system and the detection procedures. Because of the operation of specific detection measures must have a macroeconomic environment in line with the principle of proportionality. This part is circumfusing how to cause the severity of detection measures adaptation to the services degree of crime and the danger degree of perpetrator's personal to exposit the discussing. The article compartmentalizes the investigation measures into coercive measures, secret measures and the general measures. In the coercive measures, this part emphasizes to discuss the problems and shortcomings focusing on the arrest, search, seizure, three more common investigative measures, and the analysis of its proportion, and brings forward the approach of the reform and improvement of detection measures against various issues. In the secret investigative measures, the article mainly expatiates upon the criterion of the monitor and the trapped investigation from the conditions from the start, the scope of application, the implementation and the remedies of citizen rights. In general investigative measures, which may cause the relatively minor violations, simply described a few details in the process of its implementation.
Keywords/Search Tags:detection, principle of proportionality, detection system, investigation procedures, detection measures, human rights protection, order
PDF Full Text Request
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