Legal criteria for evaluating the legitimacy of the behavior of public power，The proportion principle originated from the German police administrative law and rose to one of the basic principles of the Constitution，It has important significance in the legal system of contemporary rule of law。In the evolution of history，The scope of application has penetrated from the field of public law to the field of private law，Functional positioning has gradually expanded from rights protection to power configuration，Applicable forms from regulatory positions to transcendence specifications; but for the basic content of the proportion principle、Function steering、Applicable limits，There are still many problems to be solved。Among them，Criminal Law of the Principles of the Proportion Applicable，There are questions that "can it apply" and "how to apply"。

What is the proportion principle 

The most effective principle of the most effective administrative power，The proportion principle is called the "emperor clause" in administrative law。1958 The Federal Constitution Court of Germany was in the "Pharmacy Case" judgment，For the first time, the basic content of the traditional "three -order" proportion principle was explained for the first time。Since then，Academic circles generally divide the proportion principle into appropriateness principles、Three sub -principles of the principle of necessity and the principle of compatibility，Three dimensions of "purpose -means -value" to regulate the exercise of national public power，To protect the basic rights of citizens from excessive interference。where，Principles of appropriateness (principle of sexuality、Proportion principle)，means that the exercise of public power must be appropriate，The choice of means cannot be separated from the purpose they are pursuing。The necessity principle (minimum aggressive principle)，refers to the exercise of public power that cannot cause unnecessary infringement，In all means in all means that can achieve legal purposes，Those with the smallest damage to the personal rights of citizens should be selected。Balanced Principles (Principles Principles、Principles of equivalent sex、Principles of narrow sense)，It is the legitimacy of the means from "legal consequences"，Requires public power to exercise public interests to be proportional to the damage caused by it，Only when the former is greater than the latter，This means can be quite sexual。

From the above three sub -principles, we can know，The proportion principle, although the means of exercising public power are appropriate、Evaluation of necessity and equilibrium，The right to the purpose of the behavior itself is not in the list of evaluation。but，Purpose of properness is the premise of behavior legitimacy，If the purpose is unfair，Even if the means meet the appropriateness、Necessary、Balanced three conditions，It is also difficult to achieve the protection of the basic rights of citizens。Under the theory of "Three Site"，Public power behavior with improper purpose cannot be reviewed by judicial review，Therefore, it is necessary to incorporate the "target legislative principle" into the principle of proportions，The traditional bet365 live casino games "third -order" system is developed into a "fourth -order" system，can regulate the legislators、Justice、The behavioral purpose of the administrator，It is conducive to fully guarantee human rights、Realize substantial justice。

Is the proportion principle applied to the criminal law 

The importance of the principle of proportion to defending the basic rights of citizens，More and more scholars advocate，The scope of application of this principle shall not be limited to the constitution、The field of administrative law，should be extended to civil law、Criminal Law、Criminal Procedure Law and other regions，Make it a legal principle of general applicability。For this，Some scholars hold an opposition，The principle of proportion cannot be applied to the content of the private law itself，No fields are universal; some scholars think，Principles of proportion should not be "Applicable in the field of civil law in the field of criminal law"。The above view of the principle of proportional principles is applicable to regions outside administrative law，All hold a negation、Doubtful attitude。Although the expansion of the proportion principle still faces many practices in practice，Some scholars are cautious.，But if this is completely denied the methodological meaning of the principle，In fact, because of sorrow。This article thinks，The proportion principle can be limited to the field of criminal law。

First，The logical starting point of the proportion principle is consistent with the internal value of the criminal law。From the origin of the principle of proportion and historical performance, see，The logical starting point of this principle is human rights protection，Basic function is to restrict the public power behavior of restricting citizen rights，so as to make the operation of public power more reasonable。where，The principle of properness of the purpose requires public power behavior to have a legitimate purpose，Principle principle required means to achieve the established purpose，The principle of necessity requires the use of the least damage to the public，The principle of equilibrium requires that the income of public power behavior should be greater than damage。The above content indicates，The essence of the proportion principle lies in restricting state power，Reasonable allocation of national power and personal rights，The idea of ​​rule of law that reflects human rights protection and power restrictions。The essence of thought is moderate and equilibrium，And the purpose of the purpose、Appropriateness of the means、Film and equilibrium analysis model of association between "purpose -means"，to maintain the substantial justice of the law。It is because of the fairness contained in the principle of proportion、Justice thought fits the "original heart" of human beings，"Forbidden Excess of" thought，Also in line with modern society ourselves、Moderate、Hengping's general concept，This principle can go through the breakthrough process，Beyond the area、Guo Bi、Law and Department Law，The trend that is very commonly applicable。This can be seen，Basic concept and benefit of the Protection Law of the Criminal Law、The inherent value of ensuring human rights is consistent。

2，Criminal legislation and justice need to consider the proportion principle。In a country's legal system，The Constitution belongs to the fundamental Dafa of the country，Other laws bet365 live casino games belong to the Department of Department，All departmental law must be formulated in accordance with the Constitution，Otherwise, it will be invalid due to unconstitutional。Criminal Law is a law that stipulates crime and punishment，What behavior constitutes a crime，What kind of punishment is set on the crime，Constitutional control must also be performed in accordance with the Constitution，This is the foundation foundation of the criminal law。So，During the expansion and development of criminal law，Constitutional principles and specifications are the insurmountable border。Principles as one of the important principles of the Constitution，Naturally, it also has the role of restricting and guiding the criminal law。Another，The essence of crime is to infringe the law and benefits，The task of criminal law is to protect the benefits of the law，No crime without legal and benefits。So，If the behavior of no legal and interest infringement is specified as a crime，It violates the principle of appropriateness in the principle of proportions; if it is not worthy of punishment of criminal law, it is regulated as crime，It violates the necessity principles in the principle of proportion; if the new sin is added, the benefits that are not set up before the new sin will be lost.，It violates the principle of equilibrium in the principle of proportions。

Not only criminal legislation，Criminal justice is also necessary to consider the principle of proportion。Modernization of Criminal Law is an organic unity of formal rational and substantial rationality。At crimes，We must adhere to formal reason，Strictly adhere to the legal principles of punishment，The form of justice of the law;，Must consider substantial reason，Pay attention to the fairness of the case，Give play to the crime function of "legal and interest"。Sin and sin，Corresponding to form interpretation and substantial explanation，It is just a manifestation of formal justice and substantial justice，The guiding meaning of the principle of proportion in physical value and methodology。Recent，Incidents that have identified administrative violations as crimes in judicial practice，For example, the dedicated VAT invoices that will not be filed for the purpose of defrauding national taxes will be determined as crime，Lack of substantial interpretation because it stays in the literal understanding of the Criminal Law，The guidance of the principle of proportions for criminal justice。

third，The concept of the principle of proportional principles stipulated and theoretical stipulated in the criminal law。The logical starting point of the proportion principle is highly consistent with the inherent value of the criminal law，The application of this principle in the field of criminal law does not have contradictions and conflicts。Principles of Criminal Criminal Law、Principles of Balanced Criminal Criminals、The principle of equality in front of the criminal law、Huminatingism，The principle of the proportion of "four -order" has great consistency。The legal principles of criminal punishment are as iron rules of the criminal law，Limit national power and protect human rights from two levels of legislation and judicial，The logic starting point of the principle of proportion; the principle of punishment equilibrium emphasizes punishment and crime、Balanced relationship between the three criminal responsibility，The severity of the required punishment should be compatible bet365 live casino games with the weight of the criminal and the criminal liability that should be assumed，To be felony and punishment、Light crime and light punishment、Sentences are commensurate、Punishment as a crime。Supplementary nature required by humility、fragments and tolerance，It is the purpose of the proportion principle、Appropriateness of the means、The reflection of necessity and equilibrium。

other，Many specific systems of criminal law，It also implies the idea of ​​the principle of proportion to varying degrees。For example，In the judgment of causal relationship，Criminal Law theoretical circles have conditions to say、For the reason、The theory of considerable causality and the theory of objective attribution。where，The theory of comparable cause and effect theory is the theory of Sino -Japanese criminal law Theory，The "equivalent" in it refers to the normal nature of a certain behavior that causes a certain result、General nature，instead of heterogeneity and accidental，This opinion is undoubtedly similar to the principle of proportion。In the theoretical of Objective Attribution，Three conditions that constitute an objective attribution -the danger that the manufacturing law is not allowed、Implement the danger that the legal firm is not allowed and within the range of constituent elements，Among them, the situation of exclusion and returns obviously also appropriately、Consultation of necessity。Another example，Grasp of the limit of "significantly caused significant damage to the necessary limit" in the right defense，implied the proportion of the proportion principle of the target legitimacy、Appropriateness and necessity of means、Thinking of the equilibrium of legal benefits; the limits of the limits of "must damage less legal benefits to preserve greater legal benefits in emergency avoidance，The thinking that also implies the measurement of the measurement of legal benefits。

Last，Criminal Law is also processed by the legal relationship between the state and individuals，The applicable object of the principle of proportions also matches it。So，From a form perspective，The proportion principle is suitable for the field of criminal law。

How to apply the proportion principle to the criminal law 

The proportion principle can be applied to the criminal law，But it is not in the position of the basic principle，It can not be unobstructed in the overall area of ​​the criminal law，Only appropriate considerations and reference can be appropriately considered when legislative and judiciary。

First，The principle of proportion cannot become the basic principle of criminal law。Current，The basic principles stipulated in the explicit text of Chinese criminal law are only legal principles of criminal punishment、Principles of Balanced Criminal Criminals、The principle of equality in front of the criminal law，In addition，Criminal Law does not explicitly stipulate other principles。Of course，Principles of Law and Protection、Responsibleism、Although modestism does not explicitly stipulates，But in fact it has been widely accepted by the academic circles，It is also an indisputable fact。but，The proportion principle cannot be extravagant to obtain the principle of obtaining and legal protection in the field of criminal law、Responsibleism、The same status of humility。On the one hand，The criminal law confirms that the basic principles of the Criminal Law are confirmed，It also specifies a series of specific criminal law systems，These principles and systems have implied the core idea of ​​the bet365 Play online games principle of proportion，The principle of proportions in the philosophical basis、There are many compatibility in the legal basis，All required punishment and equilibrium equilibrium for the protection of the protection of the protection。On the other hand，Criminal sanctions are also limited by "responsibleism"，In order to investigate the criminal responsibility of the perpetrator, it must also consider its ability to take responsibility，But there is no responsibleist content in the proportion principle。

Actually，From the basic content of the proportion principle，There are quite a few specifications in itself。First, the standard is not clear，What is "correct purpose"、What is "minimum violation"、What is "Balanced Interest"，Both blur。The second is whether the basic content of the proportion principle is "third -order" or "fourth order"，Currently still arguing。If the "three -order" theory said in accordance with the common saying，Principles of proportion will lack the proper approval review，This will inevitably lead to the lack of public power behavior of unconstitutional review，Not conducive to the basic rights of citizens。If according to the "Fourth Step" theory，In the principle of the proportion of the proportion of "proportion of purpose"，It seems to be able to make up for this defect，but，The principle of the "four -order" ratio of such a "four -order" ratio is the same as that of the social equivalent theory of criminal law，It is necessary to achieve independent status。

2，The proportion principle can guide criminal legislation。There must be a punishment if there is a crime，Punishment means that the country is compulsory to deprive the offender's important legal and benefits，is the most severe sanction。Although the criminal law is valid，But the punishment itself is also a kind of harm，Improper use if the country and individual are harmful。So，The following elements must be considered when using punishment: (1) Whether there is legal and benefits。If no one interest is infringed，Punishment should not be used。Even if there is legal and benefit infringement，It is also necessary to consider whether the legal benefits that should be infringed are serious，Otherwise, it will violate the requirements of the proportion principle。(2) Whether punishment will cause more serious consequences。If the interests damaged by punishment exceed the benefits of using punishment protection，The requirements of the principle of proportion are not met。(3) Whether there are alternative measures。If civilian beyond punishment、Economy、Administrative sanctions are enough to resist some behavior，No need to use punishment。(4) The proportion of cost and income。The punishment of the department means the police of a country、Check、Method、Supervisor, etc., pay a huge manpower、material resources。If the cost of spending is greater than the social interests to be maintained by the punishment of the Department of Science，So the punishment of the department should not be punished。

third，The proportion principle can guide criminal justice。Applicable Criminal Law System、Explanation of Criminal Law、When identifying specific crimes and other issues，It is necessary to consider the basic spirit of the principle of proportion。On the one hand，The proportion principle can provide guidance for the application of the judicial system，For example, the identification of legitimate defense and emergency hedging。The bet365 Play online games premise of the establishment of a legitimate defense is the existence of being undergoing illegal violations，If there are no illegal violations，can only set up hypothetical defense or unjust defense，This is the requirements of proportional principles。The purpose of legitimate defense must be to protect the country、Public interest、I or others' personal、Property and other legitimate rights，If there is no defense meaning，Ru fight、Defense provoke、Occasionally defense, etc., can not be established in legitimate defense，This is the principle of proportional principles.。Defense behavior must not significantly exceed the necessary limit to cause significant damage，This is the requirements of the principle of proportions。In the case of unlimited defense，The legal benefits protected by defense behavior are greater than the legal benefits of its infringement，At this time, even if the behavior causes major damage, it does not affect the legitimacy of the defense behavior，This is the requirements of the balance of the proportion principle。Similar to this, there is an emergency shelter，Limited condition, etc.、Time conditions、Meaning conditions、Limited condition, etc.，Proportion in the principle of proportions is implicit、Necessary、Purpose of Purpose、Equipment requirements。

On the other hand，The proportion principle can effectively guide the explanation of the terms of the criminal law pocket。The existence of the foundation clause can make up for the non -integrated extension of the list of legislation to a certain extent，But often because of its description of the constituent elements, it is too vague and abstract，"Pocket Terms of Pocket" that becomes applied by judicial applicants abuses free tailoring，thus infringe on civil rights of citizens。In order to ensure the constitutionality applicable to the terms of the pocket，It can be guided reasonably through the principle of ratio。For example，According to the principle of appropriateness，Countermeasures to explain the rules of the same nature; according to the principle of necessity，It can restrict the explanation of it according to the legal and benefits protected by the bottom of the pocket，To prevent the abuse of this clause from judicial practice; according to the principle of equilibrium，It must be according to the specific situation of the case，Based on the act of law and benefits。For this，Article 29, paragraph 2 (2) of the Criminal Law on the interpretation of "the crime of being instigated without being instigated" and "other dangerous methods to harm public safety" as an example。

About Article 29, paragraph 2, paragraph 2 of the Criminal Law, explained "The instigatal person has no crime of being instigated"，Theoretically there is the saying independence of co -crimes、Cross -subordinate theory、Both sexuality Theory of three claims。If you start from the bet365 Play online games principle of proportion，Express behavior itself should be a behavior that triggers others' intentions，Others do not have the intention to produce it at all，or although they are accepted, they have not implemented any behavior，Express behavior does not directly face behavior objects，Criminal behavior itself will not cause damage to legal benefits，Can't punish the instigattic criminals。Otherwise，It violates the appropriateness in the principle of proportion、Requirements for necessity and equilibrium。So，The reasonable explanation of Article 29, paragraph 2, should be: This clause Bet365 lotto review is limited to the suspended people who have started to commit crimes，But there is no "reaching a state of state"。

Interpretation of "Public Safety with other dangerous methods"，According to the bet365 Play online games principle of proportion，It should be explained as follows: (1) Clarifying the law and benefits of "harm to public safety with other dangerous methods" is "public safety"，"Public Safety" refers、Losses for health and major public and private property。If the behavior is not "public safety"，but the personal rights or property rights of the individual citizen，So，Even if the consequences of infringement are extremely serious，It can not be explained as "harm public safety with other dangerous methods"。(2) "Other Dangerous Methods" must be setting fire、Decision Water、Explosion、Beyond the hazardous substance，and setting fire、Decision Water、Explosion、The specific danger of investing in the crime of dangerous substances has a considerable method。Otherwise，cannot be identified as "other dangerous methods"。

In short，The principle of proportion is appropriate、Necessary、Balanced and Demonstrate Principles of the Four sub -sub -principles constructed their own regulation system，Give full play to the function of guiding departmental law。The proportion principle, although it cannot become the basic principles of criminal law due to its own connotation and characteristics，But "Unity and Division"，can still play a certain guidance function。When applying the principle of proportion in the field of criminal law，Must be carefully treated with the defects of this principle，Based on the purpose and characteristics of the criminal law itself，The localization path of the principle of serious exploration ratio，To maximize the constitutional control function of this principle to criminal law。

(Author Unit: Shanghai Jiaotong University Kaiyuan Law School)