On The Constitutional Application Of The Principle Of Proportionality

From the historical background and original intention of the principle of proportionality,as a benefit measurement scheme,the principle of proportionality is examined to prevent the abuse of public power and protect citizens’ rights.Therefore,it is of great value to study the application of the principle in the Constitution for the protection of fundamental rights.The essence of the principle of proportionality lies in the balance of interests,but can all fundamental rights be weighed? Can the principle of proportionality be applied to all fundamental constitutional rights? The answers to these questions directly relate to the function of the principle of proportionality and the nature of fundamental rights.There is a deep misunderstanding in the academic circle.Therefore,in order to perfect the application path of the principle of proportion in the Constitution and give full play to the function of protecting fundamental rights,it is necessary to clarify the functional positioning of the principle of proportion in the application of the constitution and clarify the nature and function of fundamental rights.Many scholars believe that the principle of proportionality takes "restriction of basic rights" as its basis for constitutional application.There are two argumentation paths for "restricting fundamental rights" : "conflict between public interest and rights" and "conflict of fundamental rights",but this is actually a misunderstanding of the principle of proportionality and fundamental rights.The former approach neglects the distinction of the nature of constitutional rights and the dual constitutional functions of the rigid constitutional right to protect the value of individual rights and public value,while the latter misunderstands the characteristic of the adjustment object of the Constitution which "protects against the state but not against the private".In fact,the constitutional application of proportionality principle starts from restricting the abuse of state power,rather than from "restricting fundamental rights" as some scholars say.In modern general constitutions,the rights clause is based on the protection of individual dignity and the limitation of state power.From the perspective of status,the Constitution precedes the law of the government,so the fundamental rights also have the status before and above the government.In nature,the rigid right of constitutional rights not only has the attribute of individual rights,but also has the attribute of public,and its freedom of expression plays a very important role in forming rational and democratic political decision-making.The nature and function of the rigid right determine that the guarantee right is the principle,the restriction right can only be the exception,and the principle is superior to the exception.Therefore,the principle of proportionality can not weigh and limit rigid rights.To "benefit" it will directly cancel the rigidity of such rights and infringe the universality of rigid rights.Therefore,taking "restriction of fundamental rights" as the starting point of the constitutional application of the principle of proportionality will not only damage the real function of the principle of proportionality,but also easily open the door for public power to infringe on fundamental rights.Therefore,in the application path of our constitution,the principle of proportionality should first clarify its constitutional function positioning,and limit the abuse of public power as the starting point.Secondly,the state power and related constitutional flexible rights should be examined proportionately,and the rigid rights that do not need to be protected by the principle of proportionality should be excluded from the range of weighing.Identifying the purpose of the Constitution and the function of carrying constitutional rights is not only helpful for us to grasp fundamental rights and improve the path of protecting civil rights by the principle of proportionality in the Constitution,but also for us to better determine the boundary of power and better respond to the need of building a "government under the rule of law" in the current "transformation society".