Analysis Of The Legitimacy And Feasibility Of The Application Of The Principle Of Proportionality In Civil Law

The principle of proportionality plays an important role in the administrative law.It plays an irreplaceable role in guaranteeing the basic rights of citizens and preventing abuse of administrative power.Its basic connotation includes two aspects,including the two part experience judgment and value considerations: proper principle and the principle of necessity focuses on experience,centralized rules attributes embody the principle of proportionality,deterministic and specific;narrow the proportion principle in favor of value considerations,it embodies the principle of property proportion principle,has macro and elastic.The principle of proportionality requires that administrative power can't be used for all purposes,but it is a high generalization of purpose rationality.It is also a kind of analysis and judgement for cost and benefit,and a bridge between fact judgement and value orientation.Similarly,the principle of proportionality can also be applied to civil legal relations.The principle of proportionality is inseparable from the right of discretion in specific application.It is necessary to strengthen the justices' obligation of reasoning and argument.The value characteristics of the principle of proportionality are manifested in two aspects-the meaning of ontology and the significance of methodology.The ontological meaning refers to the restriction of state power and civil rights protection principle,the exercise of public authority in violation of this principle will lead to unconstitutional consequences;the methodological significance is referred to as a "no excessive" rational behavior criterion for judging the rationality of inspection standard.When the applicable object is the state power and the basic rights of citizens,the principle of proportionality is mainly effective on ontology.When the applicable object is non state power,it mainly plays a methodological role.From this point of view,the value orientation of the principle of proportionality is both the dual meaning of both public and private law,and it is suitable for civil law to have its own legitimacy basis.As the principle of public law,the principle of proportionality is applicable to civil law,which is applied across the law area.Its legitimacy is based on the fact that public law and private law are not parallel development modes,but are interpenetrated and intersecting with each other.We cannot generally label a law as an absolute label of public law or private law.In fact,public law and private law interact with each other and act together to form a complete legal system.Private law is never a self consistent closed system.When its internal norm is not enough to solve the complex and changeable practical problems of social life,it is necessary and feasible to adjust it by invoking the norms of public law,and vice versa.The public law private law and the public law of private law are becoming more and more common.In the empirical law,there is a cross linking between the basic rights and civil rights of citizens,which is one of the prerequisites for the application of the principle of proportionality in civil law.As a tool for limiting power,the application of the principle of proportion in civil law inevitably conflicts with the core "autonomy of private law" in civil law.However,the autonomy of private law is bounded.If the two parties are not based on the full meaning and the real meaning of the civil act,or violate the mandatory provisions of the law,the principle of proportionality can be one of the boundaries of private law autonomy.The application of the principle of proportionality in civil law is of value and necessity.Its special connotations can play the role of balancing the interests of both sides in the civil law,achieving the rational allocation of resources,the justice of contracts,the maximization of economic benefits and the abuse of rights.Although there is a coincidence between the principle of honesty and credit and the principle of prohibition of abuse of rights,the principle of proportionality is more specific,which can make up for the inherent shortcomings of the basic principles of civil law,such as too macro and vague,and provide more detailed guidance for cases.