An Empirical Study On The Application Of The Principle Of Proportionality In China's Civil Adjudgment

The proportion principle is an important basic principle of the administrative law of many countries,including the appropriate principle,necessity principle and the principle of proportionality,as a major role in the field of public law principles,its purpose is to make the administrative act under the minimum damage to the rights and interests of people in.Recently,this principle that had been applied to public law has been gradually applied to the field of civil judgment.When judging,the judge also applies the principle of proportionality to assign the rights and duties of the parties.But in the process of application,whether the principle of proportionality is necessary enough to apply in the field of civil judgement,and what extent to apply,and what path to apply is a question that needs further discussion.The principle of proportionality how essentially no necessity in the field of civil judgment also need to analyze the principle of proportionality:its essence is to prevent the weak party interests,strong operability,predictability and discretion,and has the public interest correlation,suggesting that the fuzziness of basic application the provisions of the general principles of the civil law too is a good complement to the instrumental role.To what extent and path the proportionality principle is applicable is the most suitable field in the field of civil judgement.Besides theoretical discussion,it is necessary to analyze the existing cases.Starting with 15 typical cases for the proportion of published from China referee network principle,that the principle of proportionality in the civil judgment in most cases is the judicial court above the intermediate level;the principle of proportionality of contract disputes,including the types of cases Xianglinquan disputes,ownership disputes;in the specific application of the principle of proportionality in judgment the case is relatively high uncertainty,judgment of the case is less,the parties to the judge quoted the proportion principle as the basis of decision or reason to accept a relatively high degree of argument.The principle of proportionality plays three functions in the civil judgment,which is related to the public interest case analysis,the implementation of the balance of interests in the behavior of parties and the consequences of benefits between the analysis and the existing laws and regulations and the principles of interpretation analysis.The principle of proportionality depends on the relevance of "purpose means" in the process of practical application,which will help to realize the substantive justice of the law.The principle of proportionality depends on the role of organic coordination,under the principle of the child,to determine the suitability of the exercise of power,to ensure that relevant rights can be effectively maintained,when the rights of excessive intervention,coping strategies can provide corresponding to the.Thus it can be seen that the principle is helpful to the application of the judicial practice,and can provide more clear value guidance for the judges and the parties.The principle of proportionality is applied to two characteristics of civil judgment: first,courts often lack attention to appropriateness principle,and tend to be more inclined to the necessity and equilibrium principle.Two,the principle of proportionality has a certain effect on the judge's value.The reason for this phenomenon has three aspects,there is a deviation of the connotation of the proportion of judges and extension of the principle of understanding,the judge applies the principle of proportionality in the actual judgment process argument is too simple and not detailed enough,the judicial function for the principle of proportionality is unclear.In view of the existing problems,the article puts forward that we can solve the problem from the following aspects: defining the function of the principle of proportionality,determining the applicable conditions of the principle of proportionality,establishing the concrete way to apply the principle of proportionality and constructing the case guidance system of the principle of proportionality.