On The Application Of The Principle Of Proportionality In Administrative Adjudication In China

Since the supreme people’s court as early as the proportion principle is applicable to administrative cases of the referee,many places of our country court began to try to apply the principle of proportion in the administrative judge judicial review of administrative action.Proportion principle,the author of this paper in our country judicial application,main points and launched a detailed discussion on three parts:the first part is about the theory of proportionality,the introduction of development and its connotation,the second part mainly discusses the principle of proportion in our country judicial application present situation of carding and analysis,on the basis of revealing the proportion principle of some prominent question in the judicial application,the third part,aiming at the problem of proportional principle of judicial application of put forward some Suggestions to perfect the judicial application,in order to promote the judicial application of principle of proportion provide theoretical support.The first part:the development of proportional principle and meaning.The German customs anti-smuggling proportionality first developed,and gradually developed into the basic principles of administrative law and constitutional,its original meaning is the exercise of the right of the police must not overstep the limits of necessity and otherwise is illegal to abuse of power.France is not only applied proportionality review the legality of administrative act,and asked the judge’s own judgment should also conform to the principle of proportion.Britain’s excessive invalid principle important connotation embodied the principle of proportion.Our country Taiwan area in the "administrative procedural law" clearly expounds the principle of proportion of three layers of meaning,is a model of administrative legislation at home and abroad.Look from the connotation,principle of proportion by the principle of appropriateness,necessity as well as the principle of proportionality of three sub principles,corresponding administrative legitimacy,minimal invasive,and balance the three layers of meaning.The second part:the proportion principle in the present situation of our country’s judicial application.This part,first of all,this paper briefly introduces the current administrative legislation of the embodiment of the proportion principle spirit,example of the judicial application proportion principle with the corresponding legislative basis and realistic necessity.Key then enumerated and analyzed the five typical cases on the application of the principle of proportion,according to the court to apply to the principle of proportion concrete ideas come to the conclusion that the principle problems in the judicial application,these problems including the connotation of the principle of proportion is not easy to grasp the abstract,the judge on the principle of the theory of cognition is not enough,applicable techniques,and prone to the risk of abuse.The third part:the improvement of the proportion principle of judicial application.In this paper,the problems in the judicial application,proposes the corresponding perfect suggestion,cautious principle of proportion,not to escape for the law rules,prevent abuse of proportionality,should strengthen the case guidance system,give guidance case rigid effect.