Research On The Application Of The Principle Of Proportionality In Administrative Litigation Of Public Security Penalties

Administrative penalty for public security refers to the administrative penalty imposed by the Chinese public security organs in accordance with the laws and regulations on the administration of public security against illegal acts that disturb public order,impair public safety,infringe upon citizens’ rights of the person,or infringe upon public or private property,and the circumstances are not serious enough for criminal punishment.Public security management penalty is a very important kind of administrative penalty,but in recent years,the administrative discretion in the field of public security penalty presents an expanding trend,the public security punishment happens frequently in practice,and it is closely related to the basic rights of ordinary citizens.The abuse of the discretion of public security punishment will have a negative impact on the reputation,property rights and personal freedom of the administrative counterpart,and can not achieve the legislative purpose of maintaining social public security order.As the "crown principle" of administrative jurisprudence,the principle of proportionality has dual attributes,which can be used as both the conduct norm and the review norm,and can play a binding role on both administrative organs and judicial organs.Therefore,it is of great significance to apply the principle of proportion in the administrative litigation of public security penalty.However,through the empirical study of the application of the principle of proportionality in the administrative litigation of public security punishment,it is found that there are many problems in the application of the principle of proportionality in this field.The main body of application is the administrative counterpart,and the initiative of the judge is not high.Judges have different understanding of the examination standard of the principle of proportionality.The argumentation of judgment documents is too simple or rough.In many cases,the judge only mentions the principle of proportionality.In most cases,the courts did not divide the proportional burden of proof,and in the few cases where the burden of proof was allocated,almost all the courts attributed the burden to the administrative counterpart or the relevant person.There was a lack of substantive understanding of the proportionality principle by the Court and a variety of confusions.The judicial application of the principle of proportionality does not distinguish the intensity of review.Generally speaking,the courts hold a relaxed attitude towards review.The application of the principle of proportionality in this field has not played its due function,so we should learn from the experience outside the region,and constantly improve the burden of proof,the intensity of examination,the mode of judicial application,the level of reasoning and other aspects.It is important to categorize the intensity of judicial review and the mode of judicial application and to assign the burden of proof for appropriateness and balance to administrative organs.The function of judicial interpretation and guiding cases in interpretation and reasoning must be brought into play.Through these measures,the proportionality principle can fully realize the function of regulating administrative discretion and protecting the legal rights and interests of the counterpart.