行政审判中比例原则的适用--基于公开裁判文书的实证研究

Application of the Principle of Proportionality in Administrative Litigation—An Empirical Study Based on Published Judicial Decisions

基于公开裁判文书定量分析行政审判中法官对比例原则的适用行为发现,比例原则的各个子原则对判决结果的影响存在不均衡性,且子原则是否存在相关立法例对法官选择子原则进行适用有显著影响。同时,必要性原则与均衡性原则均在国家立法与判决结果的联系中发挥着一定程度的中介作用。这表明在行政审判中,法官对比例原则的适用存在选择性。推动比例原则适用的“中国化”有两种进路针对适当性原则与必要性原则,可结合当下的行政法法典化热潮对其进行立法实定化操作;针对均衡性原则,应该正确认识和处理公益与私益的关系,可要求法官在裁判说理过程中对所涉及的有关利益衡量的标准作出明确说明,以增强利益衡量的客观化程度。

Based on judicial decisions published online,this paper presents a quantitative analysis of judges'behavior in applying the principle of proportionality in administrative trials.Our analysis reveals an unbalanced impact in terms of its three sub-principles and Whether the court can obtain the support of national legislation when applying the principle of proportionality is an important influencing factor that has been neglected in previous studies.This paper demonstrates that both the principle of necessity and the principle of narrowly-defined proportionality play a certain degree of mediating effects in the link between national legislation and judicial decisions.This suggests that judges are selective in their application of the proportionality principle in administrative trials.There are two ways to promote the“Sinicization”of the principle of proportionality.For the principle of appropriateness and the principle of necessity,the legislation can be actualized in the light of the current boom of administrative law codification.For the principle of narrowly-defined proportionality,the relationship between public interest and private interest should be correctly understood and handled,and judges may be required to clearly explain the criteria for measuring the relevant interests in the process of reasoning in order to enhance the objectivity of interest measurement.