On The Principle Of Proportionality In China’s Criminal Compulsory Measures

The principle of Proportionality,which was originated in German Administrative Law,is an important principle in Public Law theory.With the development of the principle of Proportionality,it has been spread from Administrative Law to other Public Law field. The principle of Proportionality mainly deal with the relationship between purpose and behavior,in order to restrict power and protect human right.It is necessary to use criminal compulsory measures to restrict the freedom and other rights of the accused, to ensure the development of the criminal procedure, however, this restriction or deprivation must be limited. The principle of Proportionality emphasizes the balance between power and human right, so it is a common practice to apply the principle of Proportionality into the field of Criminal Procedure, especially in the criminal compulsory measures.The theoretical basis for the Principle of Proportionality mainly emodied in three aspects,the theory of the rule of law, basie rights protecting and the balance between justice and efficiency.Generally speaking, the principle of Proportionality can be further invited into three sub-prineiples:the principle of Suitability,the principle of Necessity and the principle of Proportionality.The principle of Suitability demand the compulsory measure may promote the realization of goals of the Procedure Law.The principle of Necessity demand to make an informed choice,in order to minimize the aggression on personal right.The principle of Proportionality means compulsory measures must be adapts to the nature of the accusation.Comparison with other counties, there is no clear concept about the principle of Proportionality in our Criminal Procedure Law,and in the practice of criminal compulsory measures.second,high rates on the detention compulsory measures because of unconscionable applicable condition.third,the time of the compulsory measure always against the spirit of the principle of Proportionality.Based on the reference of relevant theory and the advanced extraterritorial researeh, to introduce the principle of Proportionality into our Criminal Compulsory Measures.The analysis mainly about the establishment of the Principles of Criminal Compulsory Measures, to innovate concrete measure and the establishment of related supporting systems.