比例原則的適用範圍與審查基準

Proportionality Review: Scope of Application and Standard of Scrutiny

比例原則已經從一個警察法上的原則發展成一個行政法原則，進而上升為一個公法原則，甚至有在民法和刑法領域開疆拓土的趨勢。比例原則的主要適用範圍為公法領域，尤其是在行政訴訟、備案審查等制度框架內，應當就公權力是否侵犯公民權利，圍繞有關措施的目的正當性、適當性、必要性和均衡性展開審查。理論上，審查中可以採取較嚴格或者較寬鬆的基準。然而，採取的基準不同，很大程度上導致結果不同，從而降低比例原則審查的合理性和可預見性。我們應當立足我國對公權力進行監督的實踐，參考域外相關經驗，合理確定比例原則各個子原則審查所適用的基準。在目的正當性審查階段，應當嚴格審查公權力的目的，防止公權力以正當目的為幌子掩蓋其未必正當的真實目的，而對於目的的正當性則不宜提出過高要求。進行適當性審查時，應當適用寬鬆審查基準。在必要性審查中，應當根據有關措施對公民導致損害大小，分別適用嚴格或者寬鬆審查基準。在均衡性審查中，對基本權利所受限制的程度、所實現公共利益大小，應當予以嚴格審查，對兩者之間的法益權衡則應當從寬審查。

The principle of proportionality has evolved from a principle of police law into an important principle of administrative law, and further into a principle of public law. It might even enter the field of private law and criminal law. It is hoped that the introduction of this principle to private law might limit the interference of public power with private autonomy, and restore the distorted balance between strong and weak parties of civil law relationships. However, the interference with private autonomy by the public power is already subject to a proportionality review in the field of public law. The state bears the duty to protect weak parties of civil law relationships. Therefore, it is not necessary and impossible for the principle of proportionality to be incorporated into private law. In the field of criminal law, the state prosecutes the accused. Theoretically this legal relationship could be regulated by the principle of proportionality. However, since this principle has been concretized by criminal law to a great extent, there is no need for its application. Hence, the principle remains a principle of public law and regulates both legislation/rule-making and concrete acts of administrative agencies. When the public power interferes with the exercise of basic rights, the measure untertaken shall be subjected to a proportionality review to determine whether it persuits a legitimate goal, helps realise the goal, and whether it is necessary and proportionate in the narrow sense. In each of these four steps, a relatively loose or strict standard of scrutiny can be applied. The choice of the scrutiny determines to a great extent the final outcome and shall therefore be carefully made. Public power may only pursue legitimate goals. Since public actors may hide its real goal behind a pretended one, the goal put forward by the public actor shall be examined closely. As long as it corresponds with public interest, it shall be deemed legitimate, even when it does not count as compelling public interest. Measures taken by the public power shall be effective. To promote public interest, measures of limited effect shall also be deemed suitable. Thus the efficiency shall be scrutinized relatively loosely. The measure taken shall also be necessary. Depending on whether a constitutional right is subject to severe restraints, the scrutiny of necessity shall be conducted loosely or strictly respectively. When the public power puts a heavy burden on the exercise of civil rights, the public power shall resort to available less burdensome and less effective measures, as long as they can realize the goal on an acceptable level. In the last step, the relationship between the burden suffered by the citizen and the realized public interest shall be scrutinized. Since the public power itself does not experience the burden, it naturally tends to belittle the burden on the side of the citizen. Therefore, the evaluation of the burden shall be conducted rather strictly from the perspective of the citizen involved. At the same time, the public power inclines to overestimate the realization of public interest, so that this shall also be subjected to a strict scrutiny. when balancing the right of citizens and the public interest, it shall be taken into consideration that this process is immanently subjective. It would cause great harm to legal certainty without achieving considerable benefits to rights protection if the original balancing of the public power is too easily overruled. Therefore, a relative loose scrutiny shall apply.