| The power of public security punishment is the most important and active administrative power of public security organs,and it is also a "high-incidence zone" in which administrative discretion is abused.Public security punishment occupies an important position in the social governance structure and punishment system,and it has a wide impact on people’s rights.The improper exercise of public security punishment rights will directly damage the legitimate rights and interests of administrative counterparts such as personal liberty,property and reputation,and seriously affect the authority and authority of state agencies Credibility,disrupting the order of the administrative rule of law,causing adverse social reactions.State power comes from transferring individual rights,and public power cannot override private rights without restriction.The proportionality principle is based on protecting individual rights and the minimum restrictions on rights as the starting point and end point,emphasizing the restrictions on restrictions on rights,and achieving the concern and protection of individual rights through the restriction and balance of public power.In the field of public security punishment,the proportionality principle can be used as a criterion for public security organs to make disciplinary decisions,and it can also be used as a standard for judicial review of public security punishment by the court.In exercising the right of punishment,we must not only be restricted to the legal framework but also choose the method that minimizes the infringement of individual rights and balance the interests and values of administrative purposes and damage to administrative counterparts.The proportionality principle requires that the punishment of public security organs not only conforms to legal requirements in form but also fits the meaning of fairness and rationality.The hierarchical analysis framework of the proportionality principle has its natural normative structural advantages,and its universal operating rules lay the objective basis for judicial review tools of public security punishment and is conducive to the substantial settlement of public security punishment disputes.However,the system status of the proportionality principle in the administrative litigation of public security punishment and the current status of judicial practice are not satisfactory.There is no clear concept of the proportionality principle in China’s statute law.It just reflects the spirit of the proportionality principle in some regulations.The proportionality principle in an awkward position because of its functional similarity with the principle of rationality.In judicial practice,there are also many confusions,such as the inconsistent understanding of the connotation of the proportionality principle,inconsistent review standards,and rough argumentation.Consequently,the role of the proportionality principle in public security punishment should be faced squarely,the legal status of the proportionality principle should be clarified,and the regulatory function of the proportionality principle should be better played in judicial review of public security management punishment.The proportionality principle shall be specified in the law enforcement of public security punishment,the judicial application of the proportionality principle shall be continuously improved in aspects such as review standards,review intensity,and burden of proof.The correctness and acceptability of the proportionality principle shall be improved and the substantive settlement of administrative disputes over public security penalties shall be promoted. |
