| The principle of proportion is called the "crown principle" in administrative law.This principle originated from the German administrative law.After continuous development and expansion,it has broken through the scope of administrative law and been absorbed,used for reference and adopted by many departments and laws of many countries in the world,showing a vigorous development trend.This paper takes the principle of proportion as the research object,takes the administrative penalty litigation cases in China as the analysis sample,and analyzes the specific application of this principle in this kind of cases.The basic idea of this article is to administrative punishment type of lawsuit proportion principle is used as the breakthrough point,in 83 on the basis of studying the written judgment,adopt the method of statistics,typed combing the principle of the present status of the applicable in the field of administrative penalty litigation,including but not limited to these situation proportion principle in the judicial practice of different functions and applicable subject;The main types of cases in which the principle of proportionality is applied,as well as the appellate cases in which the principle of proportionality is applied and the adjudication of the second instance,etc.To find out the problems existing in the application of the principle of proportion in judicial practice,including but not limited to the mixing of the principle of proportion with other principles;The proportion principle is not reasonable enough in its application;The application proportion principle standard basis is single and so on.And propose solutions to the existing problems,including but not limited to clarifying the relationship between the principle of proportion and the principle of reasonableness,the principle of the equivalent of excessive punishment and other principles,to re-position this principle;Strengthen reasoning in the process of judicial application;Perfect legislation,as soon as possible in legislation on the principle of proportion to be clear.The body of the article consists of five parts.The first part is the introduction,which mainly involves the research significance,research background,research innovation points and research methods of the paper,and summarizes the previous research results by combing the literature in detail.The second part mainly involves the basic theoretical issues related to the proportion principle,including the origin of proportion principle,the hierarchy theory,the relationship with the rationality principle and the existing normative basis for the application of proportion principle.The third part through the judgment documents in detail,the use of statistical methods,the classification of the principle of proportion of the application of the status quo.The fourth part is the continuation of the previous part.By analyzing the current situation,it finds out the current situation of the principle of proportion in judicial practice,and proposes targeted measures to solve the problem.The last part is the conclusion,which summarizes the research results,the research deficiency and the prospect of the future research. |
