The Application Of The Principle Of Proportionality In The Discretion Of Administrative Punishment

The principle of proportionality is a universal review standard of administrative discretion. In administrative penalty, the principle of fair penalty is a statutory principle that can be used to constraint the substantive discretion. As to the position,the principle of proportionality can be one of criteria of penalty fairness in the substantive penalty, and it can supplement the principle of fair penalty in the penalty procedure. As to the application methods, the three sub-principles, the connotation of judicial review, the distribution of the burden of proof and the legal consequence of the principle of proportionality can all be applied in the discretion of administrative penalty.Specifically,The first part combs the developing process of the principle of proportionality and its introduction to China. The principle of proportionality starts from the idea of proportionality,derives from the Police Act of Germany,extends to the whole Europe via European integration, and is drawn by some statutory states such as Japan and Taiwan.From 1998 which was the first time this principle was introduced to China, it has not only gained widely discussions of scholars, but also played a more and more important role in the practice of legislation, administration and judicature.The second part analyzes the statutory norm of administrative penalty discretion.The principle of fair penalty in Article 4.2 of Administrative Penalty Law of PRC is the statutory principle to strict administrative penalty discretion. But there are some inherent limitations. On one hand, the principle of fair penalty doesn't include all the factors of unlawful act. On the other hand, this principle can't provide a specific criterion of fairness.The third part pinpoints the position of the principle of proportionality in administrative penalty discretion. In the substantive discretion, this principle is one of the criteria of penalty fairness. In the procedural discretion,this principle is a beneficial supplement of the principle of fair penalty.The fourth part is the application of the principle of proportionality in the administrative penalty discretion.The three sub-principles of proportionality have to consider different factors in the substantial penalty discretion and the procedural penalty discretion. In the judicial review of penalty discretion, the punishment subject has the burden to prove the necessity and appropriateness of penalty, and the counterpart can provide the opposite proofs. The court can have loose, mediate or strict review according to the situation of penalty and the degree of the restriction to the rights of counterparts. The court can have a review and make a judge following the clause of "Clearly inappropriate" in Article 70(6) and Article77.1 of the Administrative Procedure Law of PRC.The last part is conclusion. As to this passage, the principle of proportionality is one of the basic standards of administrative penalty discretion. In the current statutory system, the principle of proportionality can be used as the criteria of the principle of penalty fairness in the substantive penalty, and it can supplement the principle of fair penalty in the procedural penalty. The three sub-principles, the connotation of judicial review and the distribution of the burden of proof in the principle of proportionality can be specified in administrative penalty. The court can repeal or alter a penalty behavior that violates the principle of proportionality in the light of the clause of"clearly inappropriate".