Study On The Application Of Proportion Principle In Administrative Penalty Discretion

Discretion,as a tool,is indispensable to individual justice.In the field of modern administrative law,administrative discretion involves many aspects.As Davis puts it,"every fact that praises discretion is accompanied by a fact that risks discretion".Proportion principle is to standardize the basic principles of administrative discretion,it is not provided in the law,but its proper sex principle,need principle,the principle of proportionality in the legal provisions or individually or jointly,proportionality as widely used in the field of administrative law basic principle,has been widely accepted by the academic circles and in the Supreme Court(1999),his words HSBC company v.20 Harbin city planning bureau to use case.The principle of proportionality of excessive punishment is a legal principle in the law of administrative punishment,and its application is limited to the discretionary act in the field of administrative punishment.Then in the field of administrative penalty discretion,how does the principle of proportionality and the principle of proportionality apply? This paper aims at clarifying the relationship between the two principles in the field of administrative penalty discretion and exploring the application of the principle of proportion in the field of administrative penalty.The first part of this paper is about the basic theory of proportionality principle and the concrete embodiment in legislation and judicature.The second part is mainly about the introduction of the principle of proportionality of excessive punishment and the elaboration of the status quo of judicial application of the principle of proportionality of excessive punishment and the principle of proportionality of excessive punishment in the discretion of administrative penalty.The third part is the analysis of the relationship between the principle of proportionality and the principle of proportionality of excessive punishment.The fourth part is devoted to solving the three shortcomings of the principle of over-penalty equivalence.The author believes that the content of the principle of proportion should be incorporated into the law of administrative punishment by referring to the provisions of the law of administrative compulsion,so as to solve the confusion of the judicial application of the principle of proportion in the discretion of administrative penalty and the principle of over-penalty equivalence.Specifically,the necessity principle can be used as a concrete tool to judge whether the penalty is equivalent to the penalty.The principle of proportionality,which contains the principle of civil rights standard and non-supremacy of public interests,can deal with the dilemma when the principle of proportionality can not be applied.As a basic principle in the field of administrative discretion,the principle of proportionality is not limited to regulating entity discretion,but its inherent normative meaning can provide value guidance for procedural discretion in the field of administrative penalty.