Judicial Application Of The Principle Of Proportionality In The Perspectiveof Discretion Of Comprehensive Law-of Urban Management And Law Enforcement

The department of urban comprehensive law enforcement was just established in2018.It carries the administrative enforcement power in 8 fields including the underwriting clause,such as environmental protection,landscaping,public security and traffic,and urban planning.However,due to the excessive power of administrative discretion,the disputes between officers of urban management law enforcement and administrative counterparts are constant and the professional image is highly criticized.So,how to control the power of administrative discretion has been the focus of the theoretical and practical circles.Since the introduction of the principle of reasonableness and the principle of proportionality from countries with various legal systems into China in the 1980 s,the issue of the trade-off between these two principles has never ceased to be controversial.Besides,the judicial review of the appropriateness of administrative discretion remains highly controversial,as well as the application of review standards and review tools.This paper is based on the above issues.Firstly,the basic concepts and contents involved in the discretion of comprehensive law enforcement are analyzed and defined,pointing out that due to the limited nature of language tools and the difficulty of the legislator to foresee all the possibilities that may arise in administrative enforcement,the legislation has set up a large amount of administrative discretion for comprehensive urban management enforcement,which will inevitably lead to the abuse of power if not controlled.Secondly,through the analysis,it is pointed out that there are mainly internal and external review models for the control of the discretionary power of comprehensive law enforcement of urban management.The situation for judicial review in the external control model are “misuse of authority” and “manifest impropriety”,and the applicable standards are legal rules and legal principles,among which the discretionary benchmark is a legal rule,while the principle of proportionality and the principle of reasonableness are legal principles.The reasonableness principle from the United Kingdom and the proportionality principle from Germany are very different in terms of conception,scope of application and principles of application: the English principle of reasonableness is applied to judicial review in the field of political policy,with “judicial modesty” as the principle of review.With the introduction of the Human Rights Act,the principle of proportionality has replaced the principle of reasonableness in the field of human rights protection;while the German principle of proportionality has been applied to the protection of the legal rights of citizens and has been transplanted into various sectors of law by most countries in the world.The two principles introduced into China were either merged with the principle of reasonableness or dismantled and established as procedural rules in local government legislation,as a result of differences in scholarly opinion.The incorporated principle of proportionality has become vague and difficult to apply due to the existence of “reasonableness”.Thirdly,through the analysis of the dilemma of judicial application of the principle of proportionality in the field of comprehensive urban management and law enforcement,as well as its root causes,it is pointed out that there are some phenomena in judicial practice,such as the single source of the case,the non appropriateness review of the principle of avoiding proportionality,and different standards of application.The main causes of these phenomenon are the lack of independence of the principle of proportionality,the lack of clarity at the legislative level,the different perceptions of abuse of power and the unclear level of application of the principle of proportionality.Finally,based on the above problems and root causes,this paper proposes a corresponding improvement path,with a view to contributing to the construction of China’s administrative rule of law in a modest way.