Study On The Application Of Proportionality At Constitutional Level

The principle of proportionality which was originated in Germany is a basic principle of constitutional practice and is widely spreading all over the world with almost all the constitutional courts adopting the doctrine of proportionality. Proportionality is justified by the principle of rule of law and also derived from basic rights theory so that it meets the demands of modern authority pattern and can seek balance between private right and public good by restricting state action to avoid infringing private rights excessively. Currently, proportionality in China is not taken as a general principle of constitutional law but a sub-principle of administrative law. In fact, even though proportionality is not a local principle which rises out of our legal practice, it is necessary to bring in proportionality as a constitutional principle for its unneglectable function in protecting personal rights. The experience of other countries can be utilized as reference while fully integrated feature of Chinese own.This paper is divided into four parts. The first part raises the general question that proportionality plays the most significant role in protecting personal rights from power abuse while in China it is to some extent neglected by scholarship and legal practice. The second part elucidates proportionality’s character, content and function in protecting personal rights by analyzing its history and rationale in order to make clear of the fundamental theory of the whole paper. The third part discusses how proportionality is used in legal practice, by analyzing the changes of its function area and the applying sequence of its sub-principle. In addition, at the end of this part, it retorts the objection of applying proportionality to expound and prove the rationality in constitutional review. The last part examines the circumstances of Chinese legal system to clarify the possibility and necessity in applying proportionality in Chinese legal practice and put forward some advises which is to construct the framework of Chinese constitution review based on Chines Constitution and the right of human dignity, before that we also can apply proportionality in legal practice by legislation and law interpretation in order to make better understanding of proportionality and accumulate the experience of it.Proportionality is a constitutional principle with abundant connotation. This paper mainly argues about its importance in restricting authority action and protecting personal rights and its irreplaceable role of providing substantive justification in term of the rationality and reasonableness of every action and trades-off the every action necessarily involves. This paper employs the methodology of historical and comparative analysis in order to review the proportionality with a broad sense and at last provides operable advices for Chinese legal practice in the age of balancing.