论比例原则在宪法上的适用

发布时间：2018-05-30 01:45

本文选题：比例原则 + 基本权利保障　；参考：《山东大学》2016年硕士论文

【摘要】：比例原则是发端于德国的一项宪法基本原则,如今正在全球范围内广泛蔓延,而且已经被世界上越来越多的宪政法治国家所接受。比例原则基于法治国家原理而产生并从基本权利本质中派生出来,契合实质法治国家理念和宪政国家公权力运行规律的客观要求,在现代法治社会中具有通过调和公共利益与私人权利、限制公权力过度干涉公民私人权利,从而实现保护公民基本权利的功能。目前,比例原则在我国仅作为行政法中的一项原则而对待,在宪法领域尚未引起足够的重视。实际上,比例原则虽然不是我国本土的法律原则,但因其与基本权利保障密切相关,在考察公权力的行使是否正当时不可或缺,我国宪法领域也有必要逐步引入比例原则,国外的立法和司法经验对于我国宪法中比例原则的构建具有参考和借鉴的意义。文章共分为四个部分：第一部分提出问题,即比例原则在基本权利保障中具有重要的作用,而在我国学术研究和司法实践中的关注度却严重不足。第二部分通过梳理比例原则的发展脉络和理论基础,明确比例原则的性质、结构和功能,为本文所要讨论的主题奠定理论基础。第三部分论述比例原则在宪法领域适用过程中适用范围的变化、适用次序及审查标准的选取,并对反对适用比例原则的观点予以反驳,论证比例原则继续存在和发展的合理性。第四部分回归我国宪法实践,结合以上分析内容探寻比例原则在我国宪法领域展开适用的必要性和可能性,并针对以上问题建议构建以我国宪法文本为基础、以人格尊严权为核心的违宪审查机制；在我国违宪审查机制尚未完善的情况下,可以通过立法者立法以及法官解释法律的过程中适用比例原则,以此先行探索适合我国的比例原则适用途径。比例原则是一项内涵丰富的宪法原则,本文着重探讨比例原则在限制公权力、保障公民基本权利上所起到的重要作用,以及在法治国家中不可替代的说理功能,通过历史分析、比较研究的方法,对比例原则的产生与发展,以及在适用过程中发生的演变情况作出了说明,试图将比例原则置于宏观法治环境中考察其全貌、了解其原理。本文以通说为主线,比较借鉴多国宪法实践经验来梳理比例原则的理论内容,旨在为比例原则最终适用于我国宪法实践、服务于我国的人权保障事业提供具有操作性的对策。
[Abstract]:The principle of proportionality, which originated in Germany, is widely spread in the world, and has been accepted by more and more constitutionalism countries in the world. The principle of proportionality is based on the principle of the rule of law and derives from the essence of basic rights, which is in line with the objective requirements of the concept of the country ruled by law and the law of the public power operation of the constitutional state. In the modern society of rule of law, it has the function of protecting the basic rights of citizens by reconciling public interests with private rights and limiting the excessive interference of public power in the private rights of citizens. At present, the principle of proportionality is only treated as a principle of administrative law in our country, and has not been paid enough attention to in the field of constitution. In fact, although the principle of proportionality is not the local legal principle of our country, because it is closely related to the protection of fundamental rights, it is necessary to introduce the principle of proportionality step by step in the constitutional field of our country because it is necessary to investigate whether the exercise of public power is necessary at that time. The legislative and judicial experience of foreign countries is of reference and significance for the construction of the principle of proportionality in the constitution of our country. The article is divided into four parts: the first part raises the question that the principle of proportionality plays an important role in the protection of basic rights, but the attention in academic research and judicial practice in our country is seriously insufficient. The second part makes clear the nature, structure and function of the principle of proportion by combing the development and theoretical basis of the principle of proportion, which lays a theoretical foundation for the theme to be discussed in this paper. The third part discusses the change of the scope of application of the principle of proportion in the application of the constitutional field, the selection of the applicable order and the standard of examination, and refutes the viewpoint of opposing the principle of applying the principle of proportion, and demonstrates the rationality of the continued existence and development of the principle of proportion. The fourth part returns to the constitutional practice of our country, combines the above analysis content to explore the necessity and possibility of applying the proportional principle in the constitutional field of our country, and proposes to construct the constitution text of our country on the basis of the above problems. The unconstitutional review mechanism with the right of human dignity as the core, the principle of proportionality can be applied in the process of legislating and explaining the law by the legislator and the judge, when the review mechanism of unconstitutionality is not perfect in our country. In this way, to explore the suitable for China's principle of the application of the principle of proportion. The principle of proportionality is a constitutional principle with rich connotation. This paper focuses on the important role of the principle of proportionality in restricting public power and protecting the basic rights of citizens, as well as its irreplaceable reasoning function in a country ruled by law. The method of comparative study explains the emergence and development of the principle of proportion and its evolution in the process of application, and tries to put the principle of proportionality in the macro environment of ruling by law to investigate its overall situation and to understand its principle. This paper, taking the general theory as the main line, compares the theoretical contents of the principle of proportionality with the practical experience of many countries in order to provide operational countermeasures for the ultimate application of the principle of proportionality to the constitutional practice of our country and to serve the cause of human rights protection in our country.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D921

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