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Modern administrative discretion and apply the principle of proportionality

Author: KongLingTao
Tutor: ZhuWeiJiu
School: China University of Political Science
Course: Constitutional and Administrative Law
Keywords: Administrative discretion The principle of proportionality Fundamental rights Multiple administrative legal relations Apply the principle of proportionality
CLC: D912.1
Type: Master's thesis
Year: 2011
Downloads: 260
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Abstract

Administrative law principle of proportionality in China, the first encounter with the identity positioning dilemma: on the one hand, not on the current substantive law provisions of a statute principle of proportionality principles or fundamental principles; hand, in an academic, around the proportion the existence of the principle of independence and the principle of rank which there is great controversy. But generally it can be judged that the practitioners and theorists have been more consistently recognized the principle of proportionality in administrative law have been introduced and in-depth discussion of the need for, or that the principle of proportionality has become an administrative law principles have a legitimate of the base. At this point the premise of consensus, based on the application of the principle of proportionality is gaining everyone's attention. Unlike most scholars in the study of judicial review when the proportionality principle objective orientation, the paper is concerned with another, more important issue should cause us - \said that this issue will be closely linked perspectives toward the following two areas: First, in the discretion of the administrative process operating rules, the second is the principle of proportionality rules of conduct functions. Through the principle of proportionality connotation, function, applicable models and other aspects of institutional research and critical thinking, commitment to draw a line with this understanding of the law, ways of thinking, and the nature of things the principle of proportionality rules. The rules and guidelines will not only be interpretative in nature, but also will have considerable constructive. Text consists of the following seven parts: introduction, aims to explain the research background, problem awareness and core proposition. In deep mining NRS this phenomenon on the basis of administrative law enforcement, the author proposes realistic picture of the current administrative law enforcement and related topics, including law enforcement means chosen constitutionality, legality issues and enforcement means and balance between administrative purposes issues. Furthermore, the paper's core proposition - the \The first part focuses on the application of the principle of proportionality Field - \Review existing administrative discretion in defining patterns (mainly as \the autonomy of administrative discretion qualities derive the \Specifically, the administrative discretion should be defined in an objective understanding of the autonomy of administrative discretion and cooperation on the basis of obligatory to decide the nature of the discretion to protect the fundamental rights of discretionary optimal value proposition in order to achieve optimum the protection of fundamental rights, it should conduct all administrative discretion classified as discretionary; administrative discretion in the basic morphology, including the formation of the general discretion and discretion. The second part focuses on the operation of administrative discretion set forth the principle of proportionality in the process of morphology, including the principle of proportionality rules of conduct functionality, content, scope, and effectiveness of other aspects of Chinese law context. In the clear principle of proportionality in the field of administrative discretion in the application of space, by describing its classical meaning and validity range and to further clarify its introduction in China on the path of administrative law, I basically responded to the independence of academia on the principle of proportionality questioned, but also leads to the principle of proportionality initial rules of conduct functions. The third part focuses on the principle of proportionality applies to existing administrative experience and practical difficulties in order to transform the principle of proportionality and the specific operation to provide ideas. By summarizing and evaluating the principle of proportionality applies to existing experience, the author presents the basic principle of proportionality in China's real picture and apply predicament. The fundamental reason causing these difficulties, is still in the (traditional) the existence of the principle of proportionality own limitations, including the content of the abstract, the operation of the subjective and functional negativity. The fourth part discusses the idea of ??transformation of the principle of proportionality and the principle of proportionality applies to the specific administrative procedures. The author introduces the vision of fundamental rights and the \made in accordance with the Constitution and administrative requirements. Furthermore, in the \Discretion patterns and norms that structure helps to delineate the scope of the means to achieve administrative purposes, the distinction between legal interests beyond measure and measurable areas to the exclusion of a disproportionate administrative measures, administrative measures need to choose together. Finally, the author remarks network operation control means selected as examples to further examine the proposed set of rules operability and effectiveness. The fifth part, seeks to explain the principle of proportionality in a special class of Administrative Discretion form - \Contraction in a clear discretion on the basis of the basic constituent elements, the author focuses on the contraction of the discretionary principle of proportionality applicable in the field of space, specifically including the \Conclusion part, reiterated the full context and core logic conclusion and indicates the author desired to achieve the research goals and research unfinished matters.

Modern administrative discretion and apply the principle of proportionality

Abstract

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