Study On The Lminit Of Application Of Proportion Principle

The proportionality principle,which originated from German police law,has attracted extensive attention in theoretical research both domestically and internationally.Based on reading and sorting out relevant literature,this paper combs the phenomenon of the expansion of the application of the proportionality principle and the resulting doubts,analyzes the essence of the principle of proportionality,advocates limiting the interdisciplinary application of the principle of proportionality,and looks forward to the future development of the proportionality principle,Put forward corresponding suggestions to standardize the application of the principle of proportion.This paper is divided into five parts:The first part is an overview of the theory of the principle of proportion.In recent years,the principle of proportionality is widespread in different legal systems all over the world.This part explains the three sub principles of the principle of proportionthe principle of suitability,the principle of necessity and proportionality in the narrower sense,in order to illustrate the meaning of the principle of proportion.This part elucidates the basic concept of the principle of proportion,expounds the important influence of the principle of proportion,and paves the way for clarifying the application and essence of the principle of proportion later.The second part is the expansion of application of the proportionality principle and its disputes.In practice,the principle of proportionality is more and more widely applied.By combing the normative basis and judicial documents,we can see that the principle of proportionality is gradually popularized in administrative law;Through the interpretation of constitutional provisions,it can be seen that the principle of proportionality has a constitutional basis and will play an important role in the judicial review system;Some scholars even believe that the principle of proportionality is the guiding framework of any rational behavior,which is still universal in the field of criminal law and civil law.There is even a view that the principle of proportionality is raised to the status of the basic principle of civil law.The principle of proportionality is not rare in civil adjudication.However,many scholars oppose the generalization of the principle of proportionality.In practice,there are many problems in the application of the proportionality principle.The third part is the essence of the principle of proportion and the limitation of its scope of application.The application of the proportionality principle in various fields is becoming more and more complex.To correctly understand the principle of proportion,we need to grasp the law and essence from its wide and complex application.This paper holds that the essence of the principle of proportion can be understood from two levels:one is the level of substantive value,the other is the level of methodology.The principle of proportionality is not only a measure of the restriction of basic rights by public power,but also the substantive connotation and value goal of "inclined protection" and restriction of public power.It is also a specific and operable methodology,which can complement the cost-benefit analysis method.The essence of proportionality determines that this principle is neither a universal theoretical analysis tool nor a comprehensive applicability in practice,and can not be applied to various departmental laws without distinction:on the one hand,the principle of proportionality should not apply to the right of "absolutely non deductible";on the other hand,taking the proportionality principle as the basic principle of civil law runs squarely against the point of the principle of proportionality.The fourth part puts forward the normative path for the application of the proportionality principle.The application of the proportionality principle in public law and private law has certain limits.This paper argues that in public law,the principle of proportionality is not blindly applied actively and at all levels.We can consider the nature of the infringed right,the discretion of the case,the professionalism and technicality of the act,the nature of the act,the attribute of the public interest we want to protect and other factors,build different review benchmarks and establish different review intensity.In private law,it’s supposed to limit the scope and path of application of the proportionality principle,and establish the examination intensity weaker than that of public law.Through these measures,we can promote the accuracy and standardization of the application of the proportionality principle,and finally realize the goal of protecting human rights.