Discussion On The Principle Of Proportionality In Criminal Legislation

Study on the basic theory of Administrative law is mature gradually, theprinciple of proportionality as a fundamental principle of Administrative law has beendiscussed and concerned and there is a very high value topic. Principle ofproportionality exists is in order to avoid the wanton abuse of public authority andthus infringe the fundamental rights of citizens. How to exercise of public power,how do balance its relations and rights, which are all important issues in the field ofpublic law. Proportionality should not only be limited to the basic principles ofadministrative law, it is for the whole field of public law (including the criminal field)in particular the meaning of criminal legislation is worthy of further study anddiscussion. Writer mainly uses the logical method, comparative method, case studymethod, principle of proportionality for the boundaries of criminal legislation as thetheme to discuss in detail three principles under the principle of proportionality,principle of appropriateness, necessity, proportionality principle respectively for therole of the criminal law to hope that the principle of proportionality for the criminallegislation of significance can get more attention and discussion.Why the principle of proportionality can be the boundaries of criminallegislation? Because the principle’s starting point is the limitation of state power.Undoubtedly Criminal legislation is the role of the State activities which is the mostimportant in order to protect the fundamental rights of citizens. Criminal law-makersrecognize the boundaries of power and rights is an important problem of criminallegislation, while recognizing the limitation of State power is a top priority. Improperexercise of unlimited State power will only result in violations of individual rights,criminal legislation should be to exercise public authority on criminal legislation, inorder to achieve the purpose of protecting the legal interests. In my opinion, only inaccordance with the principle of proportionality approach to criminal law in order tomake the exercise of public authority control to a reasonable extent, to avoid backfire,infringe on personal rights. Indifference of the importance of the principle of proportionality in the domesticeducational circles and the application of criminal legislation of the principle ofproportionality.Therefore, the basic civil rights can be infringed by criminallegislation inevitablely. First of all, with the rapid and complex changes in society,increasing the risk of criminal legislation development are constantly changing withthe times, showing a range of criminal legislation expanding trend. Even weconcluded that the society have a lot of risk, blindly expanding the scope of criminallegislation to effectively control the "risk" is still a debatable issue. But blindlyexpanding the scope of legislation may infringe on the rights of citizens, it is withoutdoubt. In such cases, the need to use the principle of proportionality as guidingprinciples of criminal legislation, so as to accurately determine what benefits shouldbe adjusted by the criminal law to prevent blind expansion of the scope of criminallegislation. Secondly, the penal systems that penalty doctrine as basic ideas, penaltyexcessive use doesn’t make the purpose of the penalty to be realized, can also causeexcessive waste of judicial resources, advanced and contain the humanitarianrequirements of criminal legislation "restraining penalties", which also is the basicrequirement of proportionality, restraining penalties should not be just a simpleslogan. Finally,"crime" and "punishment" is unbalanced situation exists in criminallegislation. The important issues in the field of criminal legislation which isfundamental research is criminal legislation requires a reasonable boundaries, and Ibelieve that the principle of proportionality is the boundaries of criminal legislation.Principle of proportionality as "softening agent of public law" by some scholars,which balance the conflict of interest between public power and private rights,especially in the field of criminal law. Therefore, the principle of proportionality, asthe boundaries of criminal law it is necessary. In particular, the principle ofproportionality by the three principles it contains principles of appropriateness,necessity, proportionality principle as the boundaries of criminal legislation. First, theappropriate principle focuses on criminal legislation the aim of justification. In myopinion, legal interests is a matter for the purpose of maintenance of criminallegislation, in order to ensure that criminal legislation can be controlled to be thereasonable extent, not divorced from its purpose, identify the interests protected by criminal law is under the principle of proportionality, which is the primary issue.Secondly, on the premise of the ends, it is particularly important for the choice of themeans, the principle of necessity requires the selection of means of damage must beminimum, maximum of effectiveness, namely concrete embodiment in the area ofcriminal legislation to "prohibit unnecessary penalties", adhere to the "penalty ofmodesty", in my opinion, can truly realize the penalty of modesty was eventually toend up in the penal system. Third, the principle of proportionality is the wholeessence of the principle of proportionality, the basic requirement is based on thesetwo principles, so that the relationship between ends and means to achieve a balancedstate. The homeostatic principle of criminal legislation with the principle ofproportionality requires fit. Another side of the proportionality principle is theprinciple of prohibition of excessive, which prohibits penalties for cruelty. Inconclusion, The principle of proportionality principle for its impact for the threesub-relations purposes, means and ends and means between criminal legislation, sothat the control of the criminal legislation to a reasonable range, to prevent the causefor undue interference or infringement of fundamental rights of citizens, in order toform a balanced crime patterns.Finally, the combined Germany legislative review of the mode of establishingthe principle of proportionality as the core legislative review of the feasibility of thesystem, is the principle of proportionality as the boundaries of the criminal legislationof significance.