作为权衡方法的比例原则

The Principle of Proportionality as the Method of Balancing

比例原则具有实体规范与方法规范的双重面向:前者体现为成文与不成文两种形式,具有实证法上的约束力;后者尚处于方法论层次,依凭明示权衡命令与内含于价值概念、概括条款及基本原则的默示权衡命令,方可得以运用。比例原则的方法面向依托于广义的德国式权衡,在私法上经历了从规范适用的辅助工具到普遍方法的转变,是权衡理论在评价法学时期发展成熟的产物。比例原则的本质是权衡方法,其旨在权衡所有利益及价值冲突,并无公法与私法之别,也无法为成本收益分析所取代。在《民法典》规范适用中,作为权衡方法的比例原则既可用于对基本原则、概括条款与价值概念的具体化,也可辅助对其他法律规则的解释与漏洞填补。

The Principle of Proportionality has dual aspects,which are substantive norms and methodological norms.The former is presented as written and unwritten forms,which has a binding force in positive law;the latter is still at the methodological level and needs to be based on the balancing-orders contains by concepts consist of value,general clauses and basic principles.The methodological aspect of the principle of proportionality is oriented to a broad German-style balancing.It has undergone a transformation from an auxiliary tool for normative application to a general method in private law.It is a product of the mature development of the theory of balancing in the period of Value Jurisprudence.The essence of the principle of proportionality is the method of balancing,which aims at balance all conflicting interests and values.There is no difference between public and private law,nor can it be replaced by cost-benefit analysis.In the application of Civil Code norms,the principle of proportionality as the method of balancing can be used to concretize basic principles,general clauses and value concepts,and can also assist in the interpretation of other legal rules and the filling of loopholes.