The Principle of Proportionality Toward Risk Prevention——Based on the Judgment Logic of European COVID-19 Derogation Measures

The COVID-19 pandemic has brought legal challenges to the containment measures adopted by European countries.During the outbreak and containment phase of the pandemic,most European countries adopted measures such as lockdowns and mandatory home quarantines based on the principle of risk prevention.However,Article 15 of the European Convention on Human Rights and judgments by the European Court of Human Rights require such measures to comply with the principle of proportionality.In view of this,this article examines the European Court of Justice’s loose judgments on the derogation measures during the pandemic,and the European Court of Human Rights’situational judgments in this regard.Based on the analysis of the legitimacy of the principle of risk prevention and the principle of proportionality in responding to public health emergencies,this article prudently examines and predicts the trend of applying the principle of proportionality of risk prevention for the European COVID-19 derogation measures from three perspectives of legitimacy,necessity,and feasibility.

On the Special Application of the Principle of Proportionality under Emergency State

As the two fundamental aspects of modern society,the emergency state and the routine state are not exceptions to the rule of law.They just abide by special legal rules and must adhere to the spirit of the rule of law,such as human rights protection and power restrictions and apply the principle of proportionality.In a state of emergency,public interests are faced with major and urgent threats.In this state,the positioning of the purpose,the examination of the consequences,or the measurement of the legal benefits of the purpose and the consequences all have a certain degree of particularity and complexity.In order to increase the rationality of the principle of proportionality in the state of emergency,and to perform its value function scientifically and effectively,it is necessary to adopt loose application standards based on the characteristics of the state of emergency,grasp the key application links,and limit the scope of application to the review of the rationality of the exercise of emergency powers.Judgment of the legitimacy of the purpose of the exercise of emergency powers and the derogation of civil rights such as human dignity are not within the scope of the principle of proportionality.

The Notion of Efficiency in China’s Civil Law Scholarship

The pursuit of economic efficiency is the major driver for the birth of contemporary Chinese civil law.Contemporary civil law scholarship has demonstrated a serious concern for efficiency from the very beginning.However,many examples suggest that the notion of economic efficiency is often diluted or replaced by factors like civil law doctrinal scholasticism,moral notions,inertial thinking of the planned economy or the will of the leader.It has not been systematically attended to or expressed in a detailed and precise way in the contemporary civil law scholarship in China,rendering some economic judgments uneconomical.In the 21 st century,it is necessary for the civil law studies to establish a clearer and more precise notion of efficiency,to conduct more direct and accurate evaluations on civil laws’incentives on people’s behaviors and their socio-economic effects,so as to reduce the cost of social interactions and promote deeper cooperation and winwin outcome among individuals.