On Application Of Principle Of Proportionality In China’s Judicial Review

Although there are no Western-style Constitution litigation system in China, the judicial review systemis still there. This judicial review is the administrative procedure．In dealing with the administrativediscretion, the principle of "reviewing the legality and the rationality as supplement" is adopted. Itcontains the principle of legality and the principle of rationality．Connotation of the principle of legality isrelatively clear, but the principle of rationality is rather fuzzy, which brings a great deal of confusion andinstability in judicial practice. In view of this, many scholars recommend that the principle ofproportionality should be adopted as a standard of judicial review.Origened in Germany, the Principle of proportionality has been generally accepted as a fundamentalprinciple of judicial review by the countries of the world. This principle is not a single concept, it consistsof three specific principles: appropriateness, necessity and balance. The principle of appropriatenessrequires that administrative measures should be used to meet requirements of statutory purposes; theprinciple of necessity requires that the exercise of administrative powers from the executive authorities canfulfill the purpose requirement, not excessive infringement of the rights of citizens; the principle ofbalancing require the means that the authorities exercise cannot do more harm on the citizens’ rights that dogood to the administrative purposes. The Principle of Proportionality in its narrow sense refers only to theprinciple of balancing. Introduction of the principle of proportionality to maximize the protection of thefundamental rights of citizens on the one hand, on the other hand to provide a basis for judicial review ofadministrative discretion and standard.Though no Principle of Proportionality in the past administrative specification s, it can be found insome administrative specifications containing its meanings. The issue of compulsory administrative lawmakes it clear that the principle of proportionality has been formally adopted by China’s legislation. Inessence, the principle of proportionality has already applied in many cases in China’s judicial practice, alsosubject to the provisions of existing law. However, due to the real system environment, as well as theabstract of the principle of proportionality, this applications also creat certain difficulties: exclusion onjudicial review, unclear definition of the principle, lack of expert resources, high cost of legal-review and so on. To overcome this difficulty and make rational use of the principle, the paper proposes four meanscan be adopted: the limit on the scope of judicial review, rational choice on review of strength, optimizingon the allocation of the burden of proof and the guiding role of cases in their full play.Firstly, the paper analyzes the theoretical definition to the principle of proportionality. It analyses thecontent of the principle of proportionality in narrow and generalized senes. In generalized sense it includesthree specific principles: appropriateness, necessity, balance; while in the narrow sense, it only refers to theprinciple of balance. This paper is based on this principle on its generalized sense.Then, comparativeanalysis is used on the principle of proportionality, Germany and the United States as a typical, to grasp theunderstanding and application of this principle in two different legal systems. Through analysis, it comes toan result that the principle of proportionality are fundamental principles of modern judicial system. Finally,analysis is taken among the principle of proportionality and its relevant principles, in order to make a cleardistinction with the principle of reason, the principle of prohibition of improper connection, the principle ofadministrative discretion.Scendly, it focuses on the application and its plight of the principle of proportionality in China’sjudicial review. Though no Principle of Proportionality in the past administrative specifications, it can befound in some administrative specifications containing its meanings. The issue of compulsoryadministrative law makes it clear that the principle of proportionality has been formally adopted by China’slegislation. In essence, the principle of proportionality has already applied in many cases in China’s judicialpractice. However, due to the real system environment, as well as the abstract of the principle ofproportionality, this applications also creat certain difficulties: exclusion on judicial review, uncleardefinition of the principle, insufficience of expert resources, burdern of high cost of legal-review and so on.Last, it mainly talks about the digestion of the proportion principle in China’s judicial review. Theplight of the proportion principle in China’s judicial review can be digested by limiting the scope of judicialreview, rational choice on the review strength, optimizeing the burden of proof means and so on. Limitingthe scope of judicial review is to restrict judicial review on the number, technical or administrative disputesand so on; the strength of China’s judicial review can be reasonably in view of Europen and Americanapproaches; the configuration of the burden of proof can be constituted in accordance with the principleof proportionality; the role of case system can be used in full play: on the one hand, the meaning of the principle of proportionality can be refined; on the other hand, the scope of application of the principle ofproportionality can be gradualy expanded.