Elaboration of the Principle of Proportionality in Recordation Review
The Decision of the Standing Committee of the National People's Congress on Improving and Strengthening the Recordation Review System(hereinafter referred to as the"Decision on Recordation Review")explicitly establishes the principle of proportionality in the contemporary Chinese constitutional supervision system.However,this principle is also faced with the pressing need to construct local implications and observe practical operations in China.Specifically,after the inclusion of the principle of proportionality in the Decision on Recordation Review,there remains significant theoretical space for exploring how it should be concretely un-derstood and applied in the local Chinese context,and how each of its elements can be most ac-curately interpreted.On the one hand,the status and scope of application of the principle of proportionality within China's empirical legal system need to be clarified.On the other hand,it is necessary to delineate the components of the principle of proportionality within the Chinese context and address the key issues in legal doctrine for each component.From the viewpoint of normative positioning of the principle of proportionality in the system construction of the Deci-sion on Recordation Review and by taking into comprehensive consideration the Constitution,the Legislation Law,the Supervision Law and other laws,the review cases published by the Legislative Affairs Commission of the NPC Standing Committee,as well as foreign legal knowl-edge,we can see that the principle of proportionality has a dual normative status in the recorda-tion review process.As a general standard for internal judgment in constitutionality review,le-gality review and political review,the principle of proportionality constitutes a substantive standard and a conceptual framework for determining constitutionality,legality,and political appropriateness.Based on the lowest rationality standard,the principle of proportionality,as an independent field of judgment parallel to constitutionality review,legality review,and political review,can be used to conduct appropriateness reviews of significant legal interests not explicit-ly covered by the Constitution or laws.In China,the principle of proportionality exhibits a com-posite structure characterized by"domain judgment as a premise,standard application as the main thread."Its efficacy extends to numerous significant legal interests,including fundamental rights,as well as the field of civil rights conflicts.Based on the composite structure of the prin-ciple of proportionality in China and by proposing and demonstrating critical issues in the locali-zation process,such as"the rationale and scheme for introducing the principle of a legitimate purpose in China","the dual doctrinal structure of the principle of appropriateness in China","the essence and elements of the principle of necessity in China",and"the Chinese approach to and method for the principle of balancing",we will be able to construct a Chinese autono-mous doctrinal system for the principle of proportionality,thereby providing a solid knowledge foundation for practice.
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