The Application Of The Principle Of Proportionality In Administrative Compulsion

Government under the rule of law is one of the effective methods to realize the administrative purpose through administrative enforcement,but the means and the citizen's personal freedom and personality dignity,the property of citizens and legal persons and other rights are inseparable.In our country,the law of the People's Republic of China on administrative enforcement act as an important legal norms of administrative power,from the first drafted in 1999 to June 2011,adopted by a vote of before and after 12 years,the " hapless".Article 5 of the administrative compulsory law stipulates that "the establishment and implementation of administrative compulsion should be appropriate",that is,the implementation of administrative compulsory means must follow the principle of proportionality.Administrative law is the principle of proportion requires administrative subject in administrative purposes,if may cause the administrative relative person rights and interests is affected,to make the effect in the proportion of moderate,ultimately achieve substantial justice.Therefore,this general rule is of great significance to standardize the judicial practice of administrative enforcement.Based on the principle of proportion for the practical significance of the administrative enforcement as the breakthrough point,through comparative analysis of domestic and foreign regulation of differences in legislation,combined with the example of the problems in the judicial practice of administrative enforcement,and finally put forward for the compulsory administrative proportion principle is relatively scientific and perfect Suggestions and measures.Accordingly,the article altogether contains the following four parts.The first part is the practical significance of the principle of proportionality to administrative coercion.First statement proportion principle contains three child principle,also is the principle of appropriateness,necessity principle,the special connotation of proportionality,then analysis on the rationality of the proportion principle in suitable proportion finally summarizes principles for administrative enforcement has applicable value.The second part by listing real cases,is a city coal company illegal overload transportation a case,the Shenzhen traffic police smashed Windows look drunk driving case,Wuhan urban collective silence with his eyes,law enforcement,to deeply analyze the proportion principle in administrative enforcement of law enforcement and the judicial two aspects the plight of.The purpose of the author analyzes the dilemmas,is trying to solve the value judgment of administrative personnel in accordance with the objective demand of the public interest,finally realize the substantial justice of administrative law,is also lay the foundation for later in the fourth part of the study.The third part on the basis of summarizing the proportionality handled in legal theory and practice,on the basis of reflection is proportion principle in administrative enforcement in theory applicable shortcomings and deficiencies,namely: content abstract,difficult to operate;The subjectivity is obvious and the execution is arbitrary;The function is passive,the application of passive three aspects of the problem.The fourth part tried to apply according to proportion principle in administrative enforcement difficulties and problems existing in the theory,the proportion principle in administrative compulsory applicable standards and judgment method for correction and improvement.Must first clear the compulsory administrative proportion principle applicable standards,namely: must conform to the administrative objective and effective minimum,to the extent of the damage the interests of the administrative relative person,ensure the interests of the multiple main body balance.And then establish the compulsory administrative proportion principle applies judgment method,namely: to set up the proportion principle applicable benchmark system,by studying the case of guiding the discretion of the results,build response type compulsory administrative mode,improve the quality of the administrative enforcer.Accordingly,the author puts forward some constructive measures to the application of the principle of proportionality in administrative compulsion.