Research On The Standard Of Judicial Review Of The Administrative Discretion

In the19th century, Germany put forward the concept of the principle ofproportionality, and introduced it into the field of public law, then it got developedand improved. Once the principle of proportionality became the highest guidingprinciple of exercise of state power in German. Now, the theory of the principle ofproportionality, used to illustrate the delicate and sensible balance between statepower and civil rights in public law, has been attached importance of many countriesin the world and adopted in the form of a statute or jurisprudence. It is also translatedto different languages, or converted into similar words. The core values of theprinciple of proportionality is how to balance means and purpose,just as the balancerbetween controlling (control power) and security rights (the rights guaranteed) in thecontext of the rule of law. For regulation of administrative emergency powers, theprinciple of proportionality disallow to willful infringement of the rights of citizens inorder to achieve administrative purposes even in an emergency, while it requires tominimize the extent of possible restrictions on the legitimate rights and interests ofcitizens. This paper, based on the background of administrative emergency law,attempts to delve into the specific theory and practice of regulation of AdministrativeEmergency Power with the principle of proportionality in emergency with expectionto blend specific spirit into the operation of the administrative emergency power.The article is divided into a total of four chapters, as follows:In the first chapter, an overview of the principle of proportionality is depicted,the fine connotation of "third-order theory" of the principle of proportionality iscombed and analyzed. The author clarifys the awkward relationship between theprinciple of proportionality and the principle of administrative rationality of theadministrative to position scientifically the principle of proportionality in theframework of China’s administrative law, Then called actively for upgrading theprinciple of proportionality which is award-winning but easier to be snubbed to aseparate entity of the basic principles of China’s administrative law and pay moreattention for it.The second chapter discusses the constitutional basis of the regulation of theadministrative emergency powers with the principle of proportionality. First brieflyintroduces the meaning and characteristics of the administrative emergency powers. Then mainly explains the constitutional basis of regulation of AdministrativeEmergency Power with the principle of proportionality from Democracy, Rule oflaw and Human Rights as three spirit connotation of constitutional government.The third chapter expounds the practical necessity of regulation ofAdministrative Emergency Power with the principle of proportionality. Firstsummarize and analyze situations of the administrative emergency powers in China,then put forward two points about practical necessity of the regulation of emergencypowers with the principle of proportionality, there are: the emergency rule of law inChina going from formal to substantive; Constraints on executive power andimproving the mechanism of civil rights’ protection. At last, analyze practiceguidance for case-by-case in emergency response.The last chapter is about the way of regulation of administrative emergencypower with the principle of proportionality, including three aspects: The regulation ofthe elements of structure which are about purposes, object and value of administrativeemergency power with three sub-principles of the principle of proportionality; Thereasonably application of "law required" on regulation of administrative emergencypower, and some pathways are proposed; Optimization of regulation system ofadministrative emergency power with the principle of proportionality, somerecommendations are presented from aspects of the mechanism of balancing interests,settings and enforcement regime of the administrative emergency powers, as well asimproving of other related supporting regime.