试论比例原则及其在我国行政诉讼中的适用

比例原则是德国首创的行政法原则,有不少国家予以运用。它包括适当性原则、必要性原则和相称性原则。该原则的价值在于从权利的基本性质和法治国的实质精神出发,对行政权进行有效控制,体现出法的正义。在我国行政诉讼中将其作为司法审查的标准,可以缩小法官自由裁量的空间,提高审判的可操作性和司法权威性,有助于我国行政法治的发展。

An Approach to the Principle of Proportionality and Its Application to Administrative Litigation in China

As a principle of administrative law, the Principle of Proportionality proves valuable in that it facilitates justice of law through effective control over administrative power based on essentials of rights and the spirit of rule of law. Once adopted as the standard of judicial review in China's administrative litigation, the Principle of Proportionality will help constrain judge' s discretion, enhance the workability of court hearing and adjudication, as well as the authority of justice. Henceforth, it will sure help promote development of rule of administrative law in China.