Zhao Guilong , national trial business expert , vice president of Jining Intermediate People's Court of Shandong Province, and master's supervisor of Shandong University Law School .
This article is one of the phased results of the major project of the National Social Science Foundation of China "System Research on the Trial-Centered Litigation System" (Project No.: 14@ZH062); The Supreme People's Court 2020 Judicial Case Study Project "Case Study on Rural Land Property Disputes - Centered on Disputes on the Disputes of the Separation of Three Rights of Homesteads".
Abstract
In the Chinese context of judicial review standards, proportional principle belongs to the category of rationality standards. In terms of the introduction and reconstruction of the proportional principle, the creative application of my country's judicial field is ahead of legislation and administrative law enforcement. Judging from typical cases that can represent the position of the judging of the Supreme Court of , the creation of the applicable rules of the comparative principle has gone through a development process from implicit application to explicit application, from grafting application, direct application to declarative application. Through the summary of typical cases and high-legal case judgment rules, we can sort out the reconstruction context of the judicial review standards of my country's proportional principle - the proportional principle "integrated application" is strong in color, and generally the "proportional principle" is included in the scope of "reasonability review" for consideration, and try our best to move closer to "legality review" and legal provisions. This "integrated application" model, "reasonable form" standard, and "substantive legal" path will become the norm for my country to reconstruct the judicial review standard system of the proportional principle for a long time. The clear positioning of rational judicial review standards, the functional filling of guiding case rules creation, and the matching experiment of China's case system are the direction and path to promote the development and improvement of judicial review standards of proportional principles.
Keywords
Judicial Review Standard Proportion Principle Applicable Rules Creation Judgment Rules Creation
In the Chinese context of judicial review standards, the proportional principle falls within the category of rationality standards. The principle of proportion was first created in Germany. In 1882, the famous "Cross Mountain Case" judgment of the Prussian High Administrative Court established the status of the "principle of necessity"; in 1958, the "pharmacy case" judgment made by the German Federal Constitutional Court marked the formation of the traditional "three-order" proportional principle with appropriateness, necessity and balance as the connotation. For a long time, the principle of proportion has not only prevailed in civil law countries, but has even increasingly affected British and American legal countries. As an important legal rule introduced outside the region, it has been prominent in the construction of my country's rational judicial review standard system in recent years.
In my country, the principle of proportion has not only become the subject of frequent discussion in the field of law in recent years, but its spirit has also affected the fields of legislation and policy. From a legislative perspective, the provisions of Article 4, Paragraph 2 of the Administrative Penalty Law of 1996 and Article 5 of the Administrative Compulsory Law of 2011 are examples; local legislation also involves the spirit of the principle of proportion in the field of administrative procedures. From a policy perspective, the provisions of the "Hypermanent Administration" of the State Council in 2004, the administrative discretion made by the "Hypermanent Administration" section "should be in line with the legal purpose", the measures and means should be necessary and appropriate, and the administrative management should "be avoided to harm the rights and interests of the parties" are considered to be the first time that the official documents have a relatively complete expression of the principle of proportion.
However, neither legislation nor policy, the term "proportional principle" is used clearly. The introduction of my country's principle of comparison is directly and comprehensively reflected in the field of judicial judgment. This article takes the "typical cases" launched by the Supreme Court and the "high-legal cases" of the referee as samples, and discusses the creation and production of rules in the process of introducing and reconstructing judicial review standards in my country's proportional principles.
1. Proportional principle judicial review case sample analysis
(I) Overview of the application of proportional principle in my country's judicial review
The rule creation of the principle of applying proportional principle in China's judicial review is mainly reflected in case form and presents a relatively rare precedent color in Chinese judicial practice.In 1999, the Supreme People's Court made the first case of applying the "Proportional Principle" " HSBC case", which was regarded as "an important beginning of the establishment of the principle of proportionality in the field of Chinese administrative law." After this, the cases where the court applies the principle of proportionality gradually increase. Some scholars searched and analyzed that from 1999 to 2019, 218 valid case samples of the courts directly or indirectly applied the proportional principle can be obtained, including 84 administrative penalties, 56 administrative compulsory cases, 23 administrative expropriation, 16 information disclosure, 10 administrative licenses, 3 administrative agreements, and 26 other administrative acts, indicating that the application of the proportional principle in my country's judicial field has involved multiple administrative acts. Some scholars also counted that as of 2019, there were 44 administrative cases that could represent the judiciary position of the Supreme People's Court. Unlike the "three-order theory" constructed by academic theory, its judicial application field of rank order has at least three typical patterns: "full-order application", "intercepted application" and "abstract application". From the perspective of macro-examination standards, the judicial path for Chinese courts to creatively apply the "proportional principle" is to include it in the scope of "reasonability review" and to consider it, and to try their best to move closer to "legality review" and legal provisions.
The author searched the following typical case documents published or published by the Supreme Court: ① Guiding cases (since the first batch was published on December 20, 2011); ② " Gazette of the Supreme People's Court " case (since its inception in 1985, hereinafter referred to as the "Gumber" case); ③ "Selected Cases of the People's Court" (founded in 1992, taking the 2017 edition classification and rearrangement version as a sample, hereinafter referred to as the "Selected Case"); ④ "China Administrative Trial (Guidelines) Case" (4 volumes from 2010 to 2013, hereinafter referred to as the "Operation Cases"); ⑤ "Selected Cases of the Supreme People's Court" (individual statistics). In addition, ⑥ will also include an influential case of the local court, the "Guo Jianjun case", in the scope of consideration. From the representative case literature of categories 1 to 6, combined with academic theoretical explanations, a total of 11 cases and 14 cases involving the "proportional principle" were screened out, which is called "typical cases of the proportional principle" (see Table 1).
(II) Case of China Judgment Documents Network: The macro picture of the Supreme Court applying the "proportional principle"
Search the "administrative cases" of the "Supreme Court" of the China Judgment Documents Network. With the "proportional principle" as the keyword, 54 cases were found. Excluding the duplicates of the same case, there are actually 52 articles. This article calls it "a high-law case (Class B)". The specific categories and circumstances are shown in Table 2:
1. Category 1: 18 words of the word "proportional principle" appear in the "claim" of the parties, which can be divided into three situations. (1) The parties in the cases of B1 to B10 applied for retrial, saying that the house expropriation compensation decision made by the respondent "The compensation standards determined by the respondent are unreasonable, the evaluation time is incorrect, and the principle of proportional administration is violated." (2) The parties in the cases of B11 to B16 applied for retrial, saying that the administrative acts indicted "violating" and "not complying with" the proportional principle. (3) The parties involved in cases No. B17 and No. B18 applied for retrial and said that the original judgment did not comply with the principle of proportion. In the above cases, the Supreme Court ruled to reject the parties' application for retrial.
2. Category 2: The 34 words "proportional principle" appear in "This court believes" can be divided into eight situations. (1) In cases No. B19 to B24, the Supreme Court held that when information disclosure matters may infringe on the legitimate rights and interests of others, "the administrative agency should make appropriate treatment based on the principle of proportion." (2) In cases No. B25 to B39, the Supreme Court held that there is no (obvious) improper determination of the scope of urban shantytown renovation based on local actual conditions on the premise of complying with the principle of proportion. (3) In cases No. B40 and B41, the Supreme Court elaborated on the rule concept of "the principle of proportion should be followed when defining public interests." (4) In cases No. B42 to B44, the Supreme Court emphasized that administrative mandatory should follow the principle of proportion. (5) In cases No. B45 to B48, the Supreme Court emphasized that administrative acts that revoke administrative licenses should follow the principle of proportion. (6) In Case B49, the Supreme Court believes that the decision to recover the land use right beyond the area does not comply with the principle of proportion.(7) In cases No. B50 and B51, the Supreme Court made it clear that the people's courts are both the subject of applying the principle of proportion and are also subject to the principle of proportion. (8) In Case B52, the Supreme Court pointed out that the first instance statement that the violation of the principle of proportionality by the administrative penalty decision in the accused lacks factual basis and legal basis, and is corrected.
will take typical cases and high-law cases as samples, and sort out the applicable rules and regulations of judicial review standards for the principle of proportion and the creation of judgment rules respectively.
2. Creation of applicable rules: Introduction of judicial review standards for proportional principles
(I) Implied application of the first case of the Supreme Court's "Principle of Proportion"
In the "HSBC Case" No. A1, HSBC Company expanded the two-story building located in the courtyard of No. 108 Central Street, Harbin into two 9-story joint buildings without approval. The defendant Harbin Planning Bureau ordered HSBC to demolish the 5th to 9th floors of the street and the 8th to 9th floors of the courtyard, and impose a fine. The Heilongjiang High Court found that the administrative penalty acts accused of were obviously unfair in the first instance, and ruled to reduce the demolition area and change the number of fines.
It is worth noting that the Supreme People's Court's statement in the second instance judgment, which believes that when the Planning Bureau makes a penalty decision, it must take into account the realization of administrative goals and the protection of the rights and interests of the counterparty. "The rights and interests of the counterparty should be affected as little as possible by achieving the goals and goals of administrative law enforcement, and the words "are not limited to achieving the goals and goals of administrative law enforcement, so as to minimize the infringement of the counterparty's rights and interests." There is no word "proportional principle" in this judgment, but the expression of the judgment has attracted high attention from the academic community, and it is interpreted from a theoretical perspective as the first case of the Supreme Court's application of the "proportional principle". Some scholars believe that the second instance judgment of the "HSBC case" "has actually clearly stated the core meaning of the proportion principle." This has played an important role in promoting and promoting the in-depth research and discussion of the proportion principle. This case is therefore called "a landmark case in which Chinese courts introduce the proportional principle." However, what the "HSBC case" reflects can only be said to be an implicit application of the proportional principle.
(II) Typical cases explicit application of the "proportion principle"
The first case in which the local court explicitly applied the "proportion principle" in the judgment was case A4 "Guo Jianjun v. Land Management Administrative Penalty Case of Zhuji City, Zhejiang Province". The Shaoxing Intermediate People's Court clearly used the expression of the "proportion principle" in the second instance judgment. This is considered to be the first administrative litigation case to clearly apply the principle of proportionality.
The Supreme Court explicitly applies the "proportional principle" to start from the "Operation Case", and then expand to the "Case Selection", publicly published cases and "Communiqué" cases.
1. "Operation Case" case
"Operation Case" (Volume 1) published in October 2010 has released two important cases, namely Case A5 and Case A6. The facts of both cases occurred in 2001; the effective judgment was made in 2002; and were also published in the 3rd issue of the Supreme People's Court Gazette, 2003. In case A5, the court held that the defendant "had not considered the factors that should be considered normally and made an unreasonable specific administrative act, which is an abuse of power." The judgment confirmed that the administrative act in question was illegal and sentenced to compensate for losses. In the case analysis, the presiding judge of this case believed: "The temporary seizure of vehicles by Zhongmu County Transportation Bureau violated the principle of proportion, which is an abuse of power, and the losses caused by the counterparty should be compensated... Although the principle of proportion is still in the theoretical development stage in my country and there are no clear legal provisions, it has been unanimously recognized as the basic administrative law principle." And the Supreme Court has applied the principle of proportion in the "HSBC case", "Showing that our country's highest judicial organs also agree with the application of this principle in administrative trials." Obviously, the trial idea of this case has been directly affected by the "HSBC case". In case A6, the court held that compared with human lives, the damage to the interests of damaging vehicles is significantly less. The emergency rescue of traffic police with gas welding cutting doors is "full rationality" and is a "legitimate emergency rescue and rescue behavior." Therefore, the judgment upheld the decision not to compensate. The case pointed out: "The people's courts should not only examine the legality of administrative actions, but also examine the appropriateness of administrative discretion using rules such as proportional principles."The academic community believes that this case "for the first time, the species and rank of the 'third-order theory' of proportional principle" was established in the form of a precedent."
"Operation Case" Volumes 2 to 4 introduced three cases involving the "proportional principle", namely, Case No. A7, Case No. A8 and Case No. A9. In Case No. A7, the "Judge's Essence" pointed out that if the administrative agency has taken necessary measures in accordance with technical operation specifications, "there is no liability for compensation for losses caused by natural disasters. "The "proportional principle" is directly marked in the "index word". As the contributor, the judge of the second instance pointed out in his analysis: In this case, "when the water level can be controlled under the normal water storage level, it is required to pre-vent it more vigorously in advance to retain a larger storage capacity, which does not comply with the proportional principle. "The first instance of this case rejected the plaintiff's claim, and the second instance upheld the original judgment. In Case A8, the "Judgement Essence" pointed out: "The demolition ruling is placed in the form of property rights exchange, and the nature of the property rights and the possession method should be changed as much as possible. If the exclusive ownership of the original demolition property rights is replaced with a shared share of property without a specific property rights position and fail to provide evidence to fully demonstrate that there is no other better exchange plan, it is unreasonable discretion and can be considered as an abuse of power. Although the word "proportional principle" does not appear in the index word, the presiding judge stated in the case analysis that the defendant "has not obtained the plaintiff's consent, he made a ruling to compensate in a co-ownership manner, which does not comply with the principle of proportion." After the demolition ruling was revoked in this case, neither party appealed. In case A9, the "Judgement Essence" pointed out: "If the administrative authority fails to demolish the illegal buildings in accordance with the statutory procedures, resulting in the expansion of the loss of the illegal building materials, or other legal property suffers damage, he shall bear the liability for compensation. "In the case analysis, the judge pointed out: "Administrative agencies should follow the statutory procedures and proportional principles in forced demolition, and minimize the losses caused to the counterparty due to the violation of the clearance. "
2. Publicly released cases
On September 12, 2014, the Supreme Court publicly released the top ten cases of government information disclosure, among which the second-instance judgment of "Yang Zhengquan v. Shandong Feicheng Real Estate Administration Bureau" clearly stated that the principle of proportionality was adopted (Case No. A11). When summarizing the typical significance of this case, the Supreme Court pointed out that the principle of handling conflicts of rights and interests established in this case based on the principle of proportionality was "compliant with the legal provisions and has benchmark significance. "Some scholars pointed out that the "judicial review focuses on the 'proportion of legal interests' and is committed to measuring and judging conflicting interests, and this kind of measurement and judgment is the core function of the principle of proportion. ”
3. "Case Selection" case
Searching the "Administrative and State Compensation Volume" of "Selected Case" (2017 Edition Classified Rearranged Version), two cases that apply the "proportional principle", namely Case No. A12 and Case No. A13.
In Case No. A12, the "key point of judgment" summarized in "Selected Case" is: When conducting rationality review, the people's courts should use the principle of proportionality and other rules to review the rationality of administrative discretion. The principle of proportion, as a basic principle that administrative discretion must follow, is mainly to adjust the proportional relationship between the administrative subject's law enforcement purpose, law enforcement means and law enforcement cost. "In Case A13, the "key points of referees" summarized in "Selected Case" are: "For the review of administrative proportion principle , the legitimacy of the administrative purpose pursued by administrative actions and the correlation between the purpose and means should be first examined. If administrative law enforcement takes into account the realization of administrative goals and the protection of the rights and interests of counterparty, it can be considered that administrative actions are appropriate. "In the "Case Annotation", the difference in this case on the application of the "Proportional Principle", and the specific reasons for determining that the accused administrative act does not violate the proportional principle. Finally, it pointed out: "The review and judgment of the principle of proportion must not only strictly review the "three characteristics" (appropriateness, necessity, and balance of interests) of the principle of proportionality, but also fully respect the administrative authority's discretion. The court should fully respect the choices made by the administrative agency at that time and in the local area based on administrative management practices. Only administrative acts that seriously violate the principle of proportion and cause serious infringement to the parties should be corrected to prevent the abuse of administrative power."
The common feature of these two cases launched by "Selected Cases" is that they use the application of the "proportion principle" as a weapon to achieve the respect and concession of administration by judicial review. Starting from the evaluation of the "HSBC case", the academic community has a clear understanding of the double-edged sword nature of the "proportion principle", pointing out that "when we cheer for the introduction of the proportion principle, we must also realize that the various elements of the proportion principle inevitably contain the subjective judgment of the judge, and hidden doubts and disputes. "While judges obtain discretionary review powers, they also bear the risk of discretionary review. If the range of the weapon is exceeded and the administrative judgment is directly replaced by personal judgment, the legality of the judicial judgment will be pushed off the cliff. "Fortunately, the "Chen Ning case" in 2002, the "Zeng Weiyong case" in 2004, and the "Zheng Weiyong case" in 2013 all follow the "proportion principle" application rules, fully respect administrative discretion and professional administrative judgments, limit judicial discretion to a reasonable and appropriate scope, reflecting the judicial respect for administration, and thus protecting the rational growth of the "proportion principle" in the field of judicial review in China.
(III) Three stages of the application of the "proportion principle" in the case of the "communiqué"
1. "Wang Liping Case "With the Chen Ning case": The grafting of the "proportional principle" is applicable to
A2 and A3 cases were published in the 3rd issue of the Supreme People's Court Gazette, 2003. The effective judgment was formed in 2002. At that time, although both cases were affected by the "proportional principle", they were shy and implicit in their application, and were indirectly applied with the help of other review standards. The author called it "grafting" application.
In case A2, the court held that the accused of temporary seizure of the vehicle "does not meet reasonable and appropriate requirements and is an abuse of power. "Here, the application of the "proportion principle" is obviously grafted with the "reasonable principle" and the "abuse of power" review standards. In case A3, the first instance believed that "although the police caused damage to the car during the rescue process, it was not illegal." Here it is obviously grafting the "proportion principle" with the "legality principle". The second instance believed that the police's decision to force the door to save people "has sufficient rationality, ... did not exceed the scope of the traffic police's performance of their duties in accordance with the law. "Here, the "proportion principle" is grafted with the "reasonable principle". "Grafting application" is a roundabout way for the people's court to apply the "proportion principle" in the early stage.
2. "Dingsheng Case": The directness of the "proportion principle" is applied
A10 case, namely "Suzhou Dingsheng Food Company's administrative penalty for dissatisfaction with the trademark infringement of Suzhou Municipal Bureau of Industry and Commerce". The facts of the case occurred in 2009 and 2010, and the first-instance and second-instance judgments were made in 2011 and 2012 respectively. The case was published in the 10th issue of the "Gazette of the Supreme People's Court" in 2013. The second-instance court believed that "administrative penalties are limited to achieving the purposes and goals of administrative law enforcement, and to minimize the damage to the rights and interests of the counterparty as much as possible. "This directly explains and quotes the essence of the "proportional principle" in the judgment document - and the "Chen Ning case" and "Wang Liping case" are not explained in the judgment and the "Communiqué" cases, but in the "Operation Case" seven years later; as scholars pointed out: "The interpretation of the "Chen Ning case" cannot be limited to the final case effective judgment, namely the text of the second-instance judgment, but needs to be based on the text of the "Case No. 19" reflecting the judicial attitude of the Supreme Court Administrative Court. "The "Dingsheng Case" is the first case in the case of the "Gumber" that directly explains the core meaning of the "proportion principle".
3. "Chen Chao Case": The declarative application of the "proportion principle"
A14 case is "Chen Chao sued the passenger transport management administrative penalty case of Jinan City Urban Public Passenger Transport Management Service Center". The facts of the case occurred in 2015 and the effective judgment was made in 2017. The "Gumber" was published in the second issue of 2018. In this case, the first instance court held: "Administrative penalties should follow the principle of proportion and make the penalty deserve the fault. "The second instance court held that: "Administrative penalties should follow the principle of proportion. "This case imposed a heavy punishment on online car-hailing owners" and violated the principle of proportion, which constituted obvious improperness. "The "Judge Summary" of the "Gumorblog" points out that the court should make comprehensive consideration and judgment on such litigation in light of "the principle of proportional administrative penalties and other issues."Therefore, the "Chen Chao case" has made clear the "proportional principle" from the first instance judgment and the second instance judgment to the "judgment summary" of the Supreme People's Court Gazette, thus advancing the "proportional principle" review standard to a new stage of "declarational application" in the history of China's judicial review system.
3. Creation of judgment rules: reconstruction of judicial review standards for proportional principle
" Testing for Winsbury should only be the task of House of Lords (which became the new British Supreme Court at the end of 2009). "Equally, the Supreme People's Court should only play the role of the reconstruction of the review standard for the proportion principle. The following is a sample of typical cases of the proportion principle and the high-legal case, and an analysis of the localization of the proportion principle and the reconstruction of the review standard.
(I) "Integrated Application" model
1. The parties propose clear rank standards for the application of the proportion principle at individual times. For example, in case B14, the parties applied for retrial and said: "The respondent... did not provide any relevant evidence to prove that the expropriation of the applicant's house complies with the principle of suitability and necessity in the principle of proportion. "But this situation is rare. In most cases, the parties adopt the "integrated application" model for proportional principles. For example, in case B11, Shuaihua Company applied for retrial, saying that the "No. 58 "Approval" violated the principle of proportion"; in case B12, Fan Nan applied for retrial, saying: "Zengdu District Urban Construction Bureau took advantage of the absence of the retrial applicant, and broke into the door to demolish all the walls and houses of the retrial applicant, which violated the principle of proportionality." In case B15, Gu Lianghua applied for retrial, saying: "Saplings are transferable, and the illegal act of directly removing the saplings made Gu Liang Hua lost the opportunity to reduce losses and violated the principle of proportionality of administrative acts"; in Case B16, Dong Shuzhen applied for retrial, saying that the decision to be handled "has no factual and legal basis, the procedure is illegal, and violated the principle of fairness and proportionality." The parties sometimes apply the principle of proportionality to the judgment of the original judgment. For example, in Case B17, the parties applied for retrial, saying: "According to the principle of administrative proportion, even if the second instance court has the right to revoke the land certificate, at most it has the right to revoke part of the land certificate under the land certificate No. 204, which has evidence to prove that there is registration error, rather than all the land. "In Case B18, the parties applied for retrial and said: "The second-instance judgment, based on discretion, refers to the provisions of Contract Law and determines the amount of compensation income on the grounds that it complies with the principle of proportion in administrative law, and lacks legal basis. ”
2. Typical case: "integrated application" between third-order standards and fourth-order standards
In A4 "Guo Jianjun Case", the second-instance court held that administrative discretion "must follow the balance between law enforcement costs and law enforcement benefits, and should comply with the principle of proportion. "The reasoning part of the case has been involved in the legitimacy of the purpose (correct administrative purpose), appropriateness (means appropriateness to the purpose), necessity (minimum infringement), and balance (law enforcement costs and benefits are consistent). The academic community believes that this is the first time that a court in our country has clearly put forward the term "proportional principle" in the reasoning part of the judgment document. The index word "Zeng Weiyong Case" No. A7 directly contains the "proportional principle". The case analysis puts forward the "necessity" requirement, pointing out that "when the water level can be controlled under normal water storage level, it is required to pre-vent it in advance to retain a larger storage capacity, which does not conform to the principle of proportion. "In "Dingsheng Case", the second instance court held that: "Administrative penalties are limited to achieving the goals and goals of administrative law enforcement, and the rights and interests of the counterparty should be affected as little as possible. "This is the first case of the "Communiqué" that directly elaborates and quotes the essence of the "proportional principle". A6 "Chen Ning Case 2" and A12 "Chen Ning Case 3" both discuss the third-order standards of the proportional principle in the evaluation or judgment reasons. What is interesting is A13 "serious case". On the one hand, the "key points of the referee" point out: "For the review of the administrative proportional principle, the legitimacy of the administrative purpose pursued by the administrative act and the correlation between the purpose and means should be first examined."On the other hand, "Case Annotation" also points out: "The review and judgment of the principle of proportion must not only strictly compare with the 'three characteristics' (appropriateness, necessity, and balance of interests) of the principle of proportion, but also fully respect the discretion of the administrative organs. "There is thus a phenomenon of mixing third-order standards and fourth-order standards. As German scholars said, "The third-order proportion principle we are used to is almost no substantial standard difference in reasoning. "The "Sharing Case" represents the typical characteristics of the integrated application of the third-order standard and the fourth-order standard in my country.
3. High Law Case: "Integrated application" of the rank standard and the overall standard
The Supreme Court has applied specific and clear rank standards in a few cases. In the "Yang Junjiao Case", the Supreme Court believes that the tax collection behavior of the tax authorities cannot violate the legislative purpose of the Tax Collection and Administration Law, and the adoption of tax compulsory measures should be reasonable and appropriate and comply with the principle of proportion. This involves the purpose legitimacy standards and appropriate standards. In the case of "Chen Yuefeng" No. B42, the Supreme Court believes that "according to the requirements of the legislative legal procedures and the principle of proportion, if administrative agencies may cause damage to citizens, legal persons or other organizations in the process of performing their duties, they should choose the method of minimal infringement of the rights and interests of the counterpart. ” In the "herbal workshop" case of B50, the Supreme Court held that "unilateral adjustment (administrative agreement) must comply with the principle of proportion, minimizing the side effects caused by this". These two cases obviously involve the necessity standard. In the "Liu Chunhong Case" of B40 and "Wang Zhongwu Case" of B41, the Supreme Court elaborated on the rule concept of "the principle of proportion should be followed when defining public interests", which is the application of typical equilibrium standards.
But in more cases, the path chosen by the Supreme Court is to apply the overall standard of the principle of proportion. In the cases of B19 to B24, the Supreme Court required administrative agencies to appropriately handle information disclosure matters based on the principle of proportion; in the cases of B25 to B39, the Supreme Court held that the government determined the scope of urban shantytown renovation based on local actual conditions on the premise of complying with the principle of proportion, and there was no (obvious) improper. In the "No. B44" Wang In Henglin case, "Fanlangdui case", "Frienda case", "Frienda case" No. B46, and "Fenghe case" No. B47, the Supreme Court used the words "based on the principle of proportion", "adhering to the principle of proportion", "violating the principle of proportion", and "violating the principle of proportion". The above 25 cases reflect the integrated application model of the Supreme Court's overall standard of proportional principles.
(II) "Reasonable form" standard
1. The parties' understanding of the "reasonable form" standard of proportionality
B1 to B10 cases are the same type of cases as the respondent. In these 10 cases, all applicants applied for retrial and said that the "compensation standard is unreasonable, the evaluation time is incorrect, and the proportional principle is violated (reasonable administrative) in the proportional principle. "The parties obviously understand the proportional principle at the level of "reasonable form".
2. Typical case: The diversified standard of the proportional principle "reasonable form" standard
(1) generally applies the rationality standard. In "Chen Ning Case 1", the second instance court believes that the police decision "has sufficient rationality". In "Chen Ning Case 3", the "key points of judgment" and "judgment reasons" point out that the court should use the principle of proportionality and other rules to review the rationality of administrative discretion. In "Chuang Weiyong Case" No. A7, case analysis points out: "The responsibilities of the administrative agency are legal, but whether the performance is delayed and whether it is not fully performed involves reasonable judgments. "In emergency situations such as natural disasters, the technical specifications stipulated by laws and regulations" can be used as the basis for rational review. "In "Zhengda Case", "Case Notes" clearly states: "The principle of administrative proportion is one of the contents of the principle of administrative rationality."
(2) applies the rationality standard at the level of "obvious unfairness". In "HSBC Case", both the first and second instances believe that the Planning Bureau's punishment was obviously unfair. In "Dingsheng Case", Jiangsu High Court second instance believes that the administrative acts accused lack appropriateness and necessity, "are an administrative penalty of obvious unfairness."The first and second instance judgments of the above two cases both quoted the "apparently unfair" clause of Article 54 (4) of the Administrative Litigation Law of of 1989.
(3) applies the rationality standard at the level of "abuse of power". In "Wang Liping Case 1", the court held that "obviously unreasonable specific administrative acts constitute abuse of power", and the administrative acts accused "do not meet reasonable and appropriate requirements and are abuse of power." In "Wang Liping Case 2", case analysis pointed out that the proportional principle "belongs to the category of administrative rationality. "This case determines that "the temporary vehicle seizure measures taken by the administrative agency violate this principle and constitute an abuse of power. It is a relatively successful case of using the principle of proportion in judicial practice. "In "Zheng Zhonghua Case", case analysis pointed out that the accused administrative act "does not comply with the principle of proportionality, and there is obvious unreasonable exercise of discretion, which constitutes an abuse of power."
(4) applies the rationality standard at the level of "obviously improper". The 2014 Administrative Litigation Law added the "obviously improper" review standard and incorporated the "obviously unfair" situation into "obviously improper". "The court can review the rationality of administrative discretion, and from then on there is no doubt... Administrative litigation has entered the era of rationality review in a pantheon. "A14 "Chen Chao Case" is the first "Communiqué" case after the implementation of the new law to apply the principle of proportion from an obvious improper level. In this case, the court held that the decision to the administrative penalty in question "violate the principle of proportion and constitutes obvious improperness. "The first-instance judgment directly quoted the "obviously improper" clause of Article 70, Article (6) of the Administrative Litigation Law, which abolished the accused administrative acts and the second-instance was maintained.
3. High Law Case: From general application to "obviously improper" standard
(1) In a few cases, the Supreme Court still generally applies the rationality standard. In the "Yang Junjiao Case", the Supreme Court believed that "the tax authorities should take compulsory enforcement measures, and comply with the principle of proportion." In the "Rongzhen Case", the Supreme Court believed that the accused administrative act "comply with the requirements of the principle of proportion" and is reasonable. "In "Hu Yusong Case" No. B49, the Supreme Court held that the respondent's decision on the administrative penalty for the recovery of state-owned land use rights "lack of reasonable explanation and does not comply with the principle of proportion. "
(2) In most cases, the Supreme Court began to widely apply the "obviously improper" standard. In cases B25 to B38, the Supreme Court held that "Shifeng District Government has the right to determine the scope of urban shanty towns in accordance with the law on the premise of complying with the principle of proportion, based on local actual conditions, and the Shifeng District Government identified Xiangshi San Village in Shifeng District as the Qingshuitang shanty town renovation (Phase II) project without obvious improperity. "In Case B39, the Supreme Court held that "the regional scope of shanty town renovation is determined by the municipal and county people's governments on the premise of complying with the principle of proportion and in light of local actual conditions... There is no improperness. "In the "Friendship Case" No. B46, the Supreme Court believes that the accused of revoking the approval of the land approval document involved in the case "violating the principle of proportionality and is indeed inappropriate. "In "Baohe Case" No. B47, the Supreme Court held that "the applicant for retrial only revoked the "Breeding and Use Certificate" held by the respondent on the grounds that the validity period of the certificate does not comply with the relevant regulations, which obviously violates the principle of proportion, and the revocation is obviously inappropriate. "In B52, the "East Lian Precision Case", the first instance court believed that the administrative act indicted "violating the principle of proportionality and is obviously inappropriate, and should be revoked according to law. "Of course, the Supreme Court held that the first instance discussion lacked factual basis and legal basis and corrected it.
(III) "Substantive Legal" path
1. The parties' consideration of the "Substantive Legal" standard
In case B17, the third party in the original trial, Li Jianguang, applied for retrial, saying that "according to the principle of administrative proportion", "the second instance judgment applied the law incorrectly, which violated the basic principles and fair spirit of the law. "In Case B18, the original defendant applied for retrial, saying that "the second-instance judgment, based on discretion, refers to the provisions of the Contract Law and determines the amount of compensation income on the grounds of compliance with the principle of proportion in administrative law, lacks legal basis. "It can be seen that the above two cases reflect that the parties consider whether the court's judgment meets the principle of proportion based on the "substantive legality" standard.
2. Application and extension of typical cases to the standard of "substantive legality"
In "Wang Liping Case 1", the court held that "the legality of specific administrative actions" also includes the administrative agency's "rational use of administrative discretion", and "significantly unreasonable specific administrative actions constitute an abuse of power." Here it is obviously regarded as "substantively unreasonable" as "substantively unreasonable". "Wang Liping Case 2" No. A5 points out that administrative litigation implements the principle of legality review, "Only when administrative behavior is seriously unreasonable and constitutes fundamental violations, the court can intervene." The "serious unreasonable constitutes fundamental violations" here is the "substantive legal" review standard. In the "Guo Jianjun Case", the court held that the decision to be held indicted by the accused administrative penalty does not comply with the principle of proportion and "is an error in applying the law", and used Article 54, Paragraph 1, Item (2) of the Administrative Litigation Law of 1989 as the basis for judgment. In the "Dingsheng Case" of No. A10, the second instance believes that "when industrial and commercial administrative agencies impose administrative penalties on trademark infringement of administrative counterparts in accordance with the law, they should exercise discretion in accordance with the principle of over-punishment" and comply with the principle of minimum damage. Here, the premise is "according to law", and it is obvious that the principle of proportion is included in the "substantive legal" standard for consideration. The "Chen Chao Case" No. A14 is the first case of the "Communiqué" that directly quoted the "obviously inappropriate" clause. However, the first instance court also believed that the administrative penalty decision for the accused "does not state the time, place, passage of the plaintiff's illegal facts and the specific circumstances of the relevant road transport behavior, and should also be revoked accordingly", indicating that the court also reviewed the legality of the administrative behavior in question. The court did not determine that the administrative acts accused were illegal on the grounds of unclear facts and insufficient evidence, but directly applied the principle of proportion to the revocation, "It reflects that after the amendment of the Administrative Litigation Law, the principle of legality was expanded, which was obviously unreasonable and illegal."
3. The application form of the "substantive legal" standard for the high law case
In cases B25 to B38, the Supreme Court held that "Shifeng District Government has the right to determine the scope of urban shanty towns in accordance with the law on the premise of complying with the principle of proportion, based on local actual conditions, and the Shifeng District Government identified Xiangshi San Village in Shifeng District as the Qingshuitang shanty town renovation (Phase II) project without obvious improperness." In case B43, the Supreme Court held that "the tax authorities should take compulsory enforcement measures, comply with the principle of proportion, and do not violate the provisions of laws and regulations." In Case B51, the Supreme Court held that the accused administrative act "apparently violates the principle of proportionality of minimum infringement that should be followed by administration according to law." In B49, the Supreme Court held that the accused administrative act did not conform to the principle of proportionality, which is "unclear facts and insufficient evidence", and should be revoked and re-made. Similar to the "Dingsheng Case", "according to law", "does not violate legal provisions", "administrative according to law", "conclusive evidence" are the prerequisites to comply with the principle of proportion, which is a reflection of the adoption of the "substantive legal" review standards.
4. Outlook: The principle of proportionality development of judicial review standards
(I) Clear positioning of rationality judicial review standards
In the process of modern country ruled by law from paying attention to "formalist rule of law" to paying attention to "substantive rule of law", "the focus of judicial review will shift from legality review to rationality review." The principle of rationality originated in the UK and has established its important position in the field of public law in the UK through the three classic cases of "Wednesbury", "Padfield case" and "CCSU case". In our country, in 1983, Gong Xiangrui introduced the "Principle of Administrative Rationality" in his book "Comparative Constitution and Administrative Law". In 1989, the "Administrative Law" edited by Luo Haocai and Ying Songnian listed the principles of legitimacy and rationality as the two basic principles of my country's administrative law, and has been recognized by the academic community so far. From a legislative perspective, while establishing the "legality review principle", the Administrative Litigation Law (1989) left appropriate room for the "rational review standard" in the form of "abuse of power" and "obvious unfairness". The "obviously improper" provisions of the Administrative Litigation Law (2014) further systematically systematically the "reasonable review standard".However, the "obviously inappropriate" standards are too general and need to be concreted in judicial application. As mentioned above, the principle of proportionality has actually quietly appeared in my country's judicial review practice. What we need to do next is to clearly determine the proportional principle in the scope of rational judicial review standards in the three-dimensional structure of legality standards, rationality standards and procedural fair standards, and develop and improve it with the help of guiding cases.
(II) The function of creating guiding case rules is filled in
my country's judicial rules creation has always been based on judicial interpretation as the main carrier. However, Article 104 of the Legislative Law revised in 2015 suddenly closed a window for the "legal judicial interpretation". However, the guiding case system has quietly entered the Chinese judicial stage. The "Regulations on Case Guidance Work" issued by the Supreme People's Court in 2010 stipulates: "The guiding cases issued by the Supreme People's Court shall be referred to when people's courts at all levels when trialing similar cases." The "Organization Law of the People's Courts" revised in 2018 stipulates: "The Supreme People's Court may publish guiding cases." At this point, the guiding case system has been recognized by legislation. However, in the past ten years since the establishment of this system, the guiding cases in the field of proportional principles are still blank. Therefore, the Supreme Court should select representative cases such as "HSBC", "Chen Ning Case", "Dingsheng Case", and "Chen Chao Case" from typical cases of proportional principles to promotion to guiding cases, and start from the two aspects of rank standards and review intensity, abstractly summarize more systematic and standardized judgment rules, highlight the rule creation function of guiding cases, and build a localized judicial review standard system for proportional principles.
(III) The test of the conformity of China's judicial review case system
"From the creation of judicial interpretation rules as the main body to the creation of guiding case rules as the main body, and gradually establishing a jurisprudence system with Chinese characteristics will surely be the best choice for my country's judicial review system to move towards judicial structuralism." The establishment of China's judicial review system requires opportunities and conditions, and the introduction of judicial introduction of proportional principles is the best opportunity. First, the principle of proportion has the experience of growing through precedents in Germany, the earliest birthplace. The jurisprudence that the "Cross Mountain Case" in 1882 and the "pharmacy case" in 1958 can become milestones are proof of this. Second, the principle of proportion has already gained a foothold in case law countries. For example, after the United Kingdom joined the European Convention on Human Rights, it passed the Bugdaycay case in 1987, the Parte Smith case in 1996, and the Smith & Grady case in 2000, and until the Daly case in 2001, its administrative law formed a co-governance pattern between the principle of local rationality and the principle of foreign proportion: cases involving human rights must be used as a tool for judicial review; cases involving human rights do not involve human rights, the court will still apply the principle of rationality as the basis for review. Third, the proportional principle and standard show strong vitality in China's judicial review practice. From the implicit application of the "HSBC case" to the explicit application of a series of typical cases; from the grafting application of the "Wang Liping case" and "Chen Ning case" to the direct application of the "Dingsheng case", and then to the declarative application of the "Chen Chao case", the principle of proportion has become a model for the introduction and application of the extraterritorial legal rules. Fourth, the written law country has precedents for implementing case law, the most typical of which is the case law system of the administrative court in France. Therefore, in the fertile soil of China's judicial review, as long as the seeds of the principle of proportion and strive to water the flowers of the guiding case system, the fruits of the Chinese case system will surely be harvested.
Conclusion
In the introduction and reconstruction of the principle of proportion, the creative application of my country's judicial field is ahead of legislation and administrative law enforcement. Judging from typical cases that can represent the position of the Supreme Court's judgment, the creation of the applicable rules of the principle of comparison has gone through a development process from implicit application to explicit application, from grafting application, direct application to declarative application.
Through the summary of typical cases and high-legal case judgment rules, we can sort out the reconstruction context of the judicial review standards of my country's proportional principle - first, the proportional principle is "integrated application" in a strong color, second, overall, the "proportional principle" is included in the scope of "reasonability review" for consideration, and third, try our best to get closer to "legality review" and legal provisions. According to the "path dependence" theory of historical institutionalism, "when a government project or organization begins to develop along a certain path, the initially chosen policies will continue according to an inertial trend. That path may be changed, but it requires a lot of political pressure to produce that kind of change." Therefore, the "integrated application" model, "reasonable form" standard, and "substantive legal" path of the proportional principle created by my country will become the norm for my country to reconstruct the judicial review standard system for a long time, thus providing a rare sample of combining Chinese and Western for the creation of judicial governance rules.
The clear positioning of rational judicial review standards, the functional filling of guiding case rules creation, and the matching experiment of China's case system are the direction and path to promote the continuous development and improvement of judicial review standards for my country's proportional principle.
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Source: "Application of Law" 2021 Issue 7, Issue of Law
Editor: Shi Hui
Review: Fu Dehui
Highlight moment! At the celebration of the 100th anniversary of the founding of the Party, three Shandong judges were heard! They confessed affectionately to the party
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