Control Of Proportion Principle In Administrative Discretion

The executive power is a kind of national public power and its existence offers thenecessary condition for the public administration. The executive power gets safeguardfrom the state coercive power, so it is too strong to lose control and its abuse is notgood for the protection of the civil rights. The administrative discretion as the core ofexecutive power meets the same situation. The objective of the proportion principle isto balance the relationship between civil rights and state power, and its goal is tomake the substantial justice come true and protect the civil rights. The proportionprinciple is a very important principle in administrative law because of its multiplefunctions，the functions are very obvious especially in the exercise of administrativediscretion and the protection of civil rights, we can see that from the development andpractice of administrative discretion in foreign counties, so it has “emperor clause”status. However, there is no sufficient understanding about it in our county so that it isabused in practice and poses a threat to the right of citizens. Therefore, the applicationof administrative discretion has very important significance in our county.The proportion principle requires administrative organ to measure the public interestsand personal interests，choose the latter when the two conflict with each other. If therealization of the administrative targets is not accord with the proportion principle, itwill bring negative influence to citizens. For this reason, the interests should beconsidered roundly and regularly in order to control damage in the minimum scope.According to our legal practice, the proportion principle as the basic principle shouldbe used in the whole domain of administrative law.Although the proportion principle has appeared in our legislation and judicial practice,the foundation of the theory is week. There are so many puzzles to be solved, such asthe relationship between the proportion principle and the rationality principle. It isnecessary to put proportion principle into the Chinese administrative law for the betterprotection of human rights, the further investigation and specification ofadministrative discretion. Through the comparative study of two kinds of theory, wemust know how to exert proportion principle’s functions so that we can improve thelevel of civilization and construction of service-oriented government.