Research On The Application Of The Principle Of Proportionality In Major Emergency Response

Always adhering to the principle of doing things according to law in the response to major emergencies is a symbol to measure the level of rule of law in a society.Looking back at the past major emergencies such as mudslide disasters,Tianjin explosion accidents,oil pipeline leakage accidents and the 2020 new crown pneumonia epidemic,which have caused violent social fluctuations and made China’s government rule of law construction face a severe test,and the principle of proportionality can flexibly adjust various interests in society,in some existing legal provisions in China,only reflects the meaning or spirit of the principle of proportionality,and the "figure" in the emergency management legal system in response to emergencies is slightly thin.In the response to major emergencies,the principle of proportionality can weigh the means and purposes of the exercise of power,regulate the exercise of administrative emergency power,limit the degree of government derogation of citizens’ rights,and become a practical tool for restoring social stability.Taking major emergencies as the background,this thesis analyzes the particularity of their response,the particularity between public interests and individual interests,and the government’s emergency power and operation,explaining that the principle of proportionality in normal administration cannot meet the special needs of emergency states,but should start from the actual needs of emergency response.Secondly,the logical connotation of the proportionality principle is clarified,and the complexity of rights and interests,the diversity of measures and the momentum of law enforcement are analyzed to provide conditions for the feasibility of applying the proportionality principle.Thirdly,it focuses on the embodiment of the principle of proportionality in existing laws and regulations and the International Health Regulations(2005),as well as the dilemma of application in specific cases,and finds that the figure of the principle of proportionality in the emergency legal system is slightly "thin",and has not been clearly and standardized,and in the state of emergency,the emergency measures of administrative organs will inevitably appear overkill,which indicates that there are difficulties in the transition between normal management and abnormal management.The judgment criteria applied by the proportionality principle are difficult to meet the needs of the emergency state;After analyzing the dilemma of the application of the principle of proportionality,it is necessary to clarify and strengthen the principle of proportionality in relevant legislation,realize the reasonable transfer of abnormal management to normal management,promote the application of the principle of proportionality,and at the same time,explore the judgment criteria for improving the application of the principle of proportionality,reverse the means and ends,choose the most effective means or the less infringing means,and at the same time,judge with the help of the "significance standard".Only a social governance model that conforms to the rule of law in China is a social governance model that conforms to the development of the times.By specifically integrating proportional thinking in the process of responding to and handling crises,it is of great significance to promote the construction and development of China’s emergency management legal system.