论比例原则在经济法司法适用中的谦抑性

The Modesty of the Judicial Application of the Principle of Proportionality in Economic Law

比例原则在当下经济法中的司法适用,大多以涉案行为“违法”告终,昭示出比例原则适用的“泛干预主义”倾向。“谦抑性”是对比例原则适用“分寸”之理论回应,其法理基础可从比例原则的功能定位、固有局限以及经济法品格三个层面得以诠释。比例原则在经济法中适用的谦抑性可被解构为“补充性”“有限性”“宽容性”和“内敛性”四要素,由此推理出比例原则在经济法中谦抑性适用的制度框架:在实体上,只有存在法律漏洞方能动用比例原则,其适用范围排除特殊紧急状态和不可克减权利,适用方式遵循整体从宽的类型化理路。在程序上,诉讼推进阶段下的司法适用应严格奉行当事人主义诉讼模式,并以法律关系结构为依据配置类型化举证责任;案件裁判阶段下的司法适用不得超出认定事实范围,同时应对援引的比例原则附加形式理由。

At present, the judicial application of the principle of proportionality in economic law mostly ends in the “illegality” of the acts involved, which shows the “Pan harshness” tendency of the principle of proportionality. “Modesty” is the theoretical response to the application boundary of the principle of proportion, and its legal basis can be explained from three aspects: the functional orientation, inherent limitations and the character of economic law. The modesty of the application of the principle of proportionality in economic law can be deconstructed into four elements: “complementarity”, “finiteness”, “tolerance” and “introversion”. Based on this, the following institutional framework of the application of the principle of proportionality in economic law can be deduced: At the entity level, firstly, the principle of proportionality can only be used if there are legal loopholes;secondly, its application scope should exclude special emergencies and non-derogable civil rights;and thirdly, its application mode should follow the typological approach under the position of tolerance. At the procedural level, in the stage of litigation proceedings, judges should strictly pursue the adversary litigation mode, and allocate the burden of proof according to the structure of legal relationship. In the judgment stage of the case, judges should not judge cases beyond the scope of determining facts. Moreover, they should attach formal reasons to the cited principle of proportionality.