On The Application Of The Principle Of Proportionality In China's Administrative Litigation

The principle of proportionality,originated in Germany,has been recognized and accepted by more and more countries.the principle of proportionality to be applied in administrative trials by these countries,which effectively regulates administrative discretion and protects the legitimate rights and interests of citizens.In the context of its popularity all around the world,the principle of proportionality has attracted the attention of Chinese experts and scholars.In recent years,the administrative discretion in China has been showing a trend of expansion,and there are many cases of abusing the administrative discretion.Faced with this situation,the administrative discretion of the executive must be limited.Taking the principle of proportionality as the criterion for judicial review can strictly regulate the discretion of administrative organs.In 1999,the Supreme People's court applied the principle of proportionality for the first time in the complaint case of Harbin HSBC Industrial Development Co.,Ltd.against Harbin Urban Planning Bureau,and published the case in the Gazette of the Supreme People's court,which played a good guiding role for the local people's courts at various levels.After that,the local people's courts at various levels began to try to apply the principle of proportionality to administrative trials.Compared with the principle of rationality which was first introduced into China,the principle of proportionality has a clearer connotation and is more operable.Therefore,some scholars have proposed to replace the principle of rationality with the principle of proportionality.In practical administrative litigation,the application of the principle of proportionality has the following characteristics: the expanding applicable field,the unbalanced application rate of the three sub-principles,the different degrees of acceptance by the local courts at various levels,and the limited development space.In addition,its unclear definition in the laws of China,the judges' lack of substantive understanding,the obstruction of judicial environment,the ambiguity of examination standard and intensity,etc.,cause low application rate of the principle of proportionality in our administrative litigation.In response to this situation and combining the development trend of the principle of proportionality,a diversified review intensity system must be established in china.The court should further optimize the distribution of evidential burden between administrative counterparts and administrative agencies in administrative trials,and carefully study the cases of administrative guidance on the principle of proportionality issued by the Supreme People's Court to improve the professionalism of judges in judging cases.At the same time,the court should also pay attention to preventing the abuse of the principle of proportionality,respecting the discretion of the administrative organs,and prohibiting the evasion of express provisions in judicial trials.As the “king clause”of administrative law,the principle of proportionality should be paid due attention.Although Chinese courts have applied the principle of proportionality to administrative cases since 1999,the overall situation is still not optimistic,and the principle of proportionality has not got the attention it deserves.This situation needs to be changed,and judges should have the courage to apply the principle of proportionality in trial activities,instead of being under pressure to conduct active judicial review of administrative action.The principle of proportionality still has a broad development space in China,and will play a huge role in the process of legal road construction in the future.