A Study on Proportionality
Comparative Perspectives, and Prospects in China
DOI:
https://doi.org/10.47814/ijssrr.v8i1.2489Schlagwörter:
Proportionality, Proportionality Analysis, Human Rights, Fundamental Rights, Constitution, Administrative Law, Government, Comparative LawAbstract
The core of proportionality is about adjusting the rational relationship between means and ends, seeking a balance between benefits and harms. This study discusses the application of Proportionality Analysis (PA), which is a structured test of proportionality created by The German Federal Constitutional Court and now used by almost all the world, from a comparative legal perspective, introducing the sub-tests of proportionality: legitimacy, suitability, necessity, and balancing tests, and illustrates its application through examples from four jurisdictions: Germany, Canada, Taiwan, and Hong Kong. For China, although proportionality is not explicitly included in the constitutional text, it is effectively applied through constitutional interpretation and judicial practice. PA is becoming integrated into China's constitutional review system. With increased emphasis on human rights protection, the application of PA is expected to expand in China.
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