合理、诚信抑或比例原则:目的正当性归属之辩

The Principle of Reasonability,Good Faith or Proportionality:An Argument on the Attribution of the Purpose Legitimacy

近年来,国内有学者主张将目的正当性增列为比例原则的第一个子原则。由于目的正当性已为合理原则和诚信原则所包含,该说等于"一女三嫁"。在行政法上,基于滥用职权与明显不当审查功能分化的需要以及目的正当性判断的功能属性,将行政目的正当性要求归入比例原则并不妥当。由于比例原则对保护公民权利具有显著优势,包括英国在内的普通法系国家已逐渐舍弃合理原则,改而采用比例原则;我国引入比例原则之后,为更好地保护公民权利,以比例原则取代合理原则应是大势所趋。在此背景下,让目的正当性要求固守在诚信原则中最为妥当,我国人民法院审判实践中的做法也与上述主张相契合。

In recent years,some scholars have advocated that purpose legitimacy should be added as the first sub-principle of the proportionality principle.Since purpose legitimacy has already been included in the reasonable principle and the principle of good faith,the proposal is tantamount to unnecessary conflation of different principles.Within the scope of administrative law,it is not appropriate to classify purpose legitimacy of administrative purposes into the principle of proportionality based on the need of functional differentiation between power abuse and obvious inappropriateness,and also on the functional attribute of the judgment of purpose legitimacy.Because of the significant advantage of proportionality in protecting human rights,common law countries,including the United Kingdom,have gradually abandoned the reasonable principle and adopted the principle of proportionality alternatively.Since the principle of proportionality was introduced to China,it has become an inevitable trend to replace the principle of reasonability with the principle of proportionality as to better protect the rights of citizens.In this case,it is better to reserve the legitimate purposeto the principle of good faith.The practices of courts in China basically attest to the above proposition.