比例原则在民法上的适用及展开

The Application of the Principle of Proportionality in Civil Law

比例原则包含"适当性"、"必要性"和"均衡性"三个子原则,其通过对"手段"和"目的"之关联性的考察,以确认国家权力对公民基本权利的干预有无逾越必要的限度。比例原则的精髓在于"禁止过度",对包括民法在内的整个法律秩序发生作用。比例原则适用于民法不仅具有可行性,而且具有重大的理论意义和实践价值。比例原则可广泛地作用于民事立法、民事司法和民事行为等领域,对这些领域是否存在"禁止过度"的情况进行分析和诊断,以确保相关主体的权利和自由不被过度干预,从而能够捍卫私法自治的价值,也有助于推动民法在理念和制度层面的更新。因此,比例原则具备担纲一项民法基本原则的地位和资格。

Principle of proportionality consists of three secondary principles, which are principle of necessity, principle of suitability, as well as principle of balancing. By using the relevance between ＂ means＂ and ＂ purpose ＂, principle of proportionality can exert the function of ＂restriction＇ s restriction＂, in order to confirm the intervention of state power on fundamental civil rights not surpass the limits of necessity. Therefore, the essence of principle of proportionality is prohibition of excess, and such principle plays an important role in the whole legal system, as well as the system of civil law. The applicability of the principle to civil law is not only feasible, but also valuable both theoretically and practically. Principle of proportionality functions also in civil legislation, civil judicature, and civil conduct. Analyzing and judging whether there is ＂excessive prohibition＂ in these fields to ensure that the rights and liberty of related shall not be excessively intervened. In consequence, the value of autonomy of private law can be safeguarded and the civil law can be updated both at the theoretical level and institutional level. Thus, the principle of proportionality can act as a fundamental principle of tort law. Under the background of codification of civil law, the principle of proportionality has brilliant prospects.