On the Special Application of the Principle of Proportionality under Emergency State

• 作者: MEI Yang LIU Zhao
• 来源期刊: 人权（英文版）
• 年，卷（期）: 2021,（4）
• 所属期刊栏目: SPECIAL TOPIC Ⅱ: APPLICATION OF THE PRINCIPLE OF PROPORTIONALITY UNDER EMERGENCY STATE
• 页码范围: 620-638
• 页数: 19页
• 语种: 英文

摘要

As the two fundamental aspects of modern society, the emergency state and the routine state are not exceptions to the rule of law. They just abide by special legal rules and must adhere to the spirit of the rule of law, such as human rights protection and power restrictions and apply the principle of proportionality. In a state of emergency, public interests are faced with major and urgent threats. In this state, the positioning of the purpose, the examination of the consequences, or the measurement of the legal benefits of the purpose and the consequences all have a certain degree of particularity and complexity. In order to increase the rationality of the principle of proportionality in the state of emergency, and to perform its value function scientifically and effectively, it is necessary to adopt loose application standards based on the characteristics of the state of emergency, grasp the key application links, and limit the scope of application to the review of the rationality of the exercise of emergency powers. Judgment of the legitimacy of the purpose of the exercise of emergency powers and the derogation of civil rights such as human dignity are not within the scope of the principle of proportionality.