Welcome to visit ACADEMIC MONTHLY，Today is

Chinese
Volume 56 Issue 3
March 2024
Article Contents

    Citation: ZHAI Yi. A New Discussion on the Justification Review Method of the Principle of Proportionality—— A Perspective that Integrates Law,Economics,and Negotiation Theory[J]. Academic Monthly, 2024, 56(3): 107-119. shu

    A New Discussion on the Justification Review Method of the Principle of Proportionality—— A Perspective that Integrates Law,Economics,and Negotiation Theory

    • Abstract

      The lack of appropriate review methods has led to disputes over the hierarchy of the principle of legitimacy of purpose,as well as issues such as review misalignment,insufficient review,excessive subjectivity,and inaccuracy caused by some scholars simply copying the principle of reasonableness of common law to determine the inappropriate purpose in the principle of proportionality.The key to solving the problem lies in reconstructing the method of examining the legitimacy of the purpose.The principle of proportionality,the common methods of law and economics,and negotiation theory can be integrated to construct a new approach for examining the legitimacy of purposes.Starting from the “comparative” thinking,the purpose of examining the legitimacy of purposes can be classified into two categories: “the purpose of realizing (safeguarding) rights (interests)” and “the purpose of restricting rights (interests)”,and the corresponding objective and subjective content can be compared and examined.In the review process,the objective content corresponding to the purpose should be quantified and reviewed first,and then the subjective content corresponding to the purpose should be reviewed.In terms of examination standards,based on the improvement of Kaldor Hicks,the objective content corresponding to the legitimacy examination standard quantified by law and economics is that the value of “realization (protection)” is greater than “limitation”; The examination of subjective content corresponding to the purpose is achieved through equal and free negotiation.The objective and subjective content corresponding to the purpose has passed the legitimacy review,and the purpose is legitimate.By combining the advantages of the principle of proportionality and the principles of law and economics,and using the common “comparison” method of proportionality,law and economics,and negotiation theory as the connection point,we can better understand and practice the principle of proportionality.
    • 加载中

    • References

    • Access

      1. [1]

        ZHANG Qi . The Concept of Justice in Classical Economics from the Debates on Poor Laws. Academic Monthly, 2025, 57(7): 67-78.

      2. [2]

        LUO Biliang . Leviathan: From Agriculture to Artificial Intelligence——Techno-Political Economy and Reflections on the Continuity of Human Civilization. Academic Monthly, 2025, 57(7): 52-66.

      3. [3]

        HUI Chunshou . The Rawls's Difference Principle and Its Interest of Emancipation. Academic Monthly, 2025, 57(7): 41-51.

      4. [4]

        GAN Shaoping . Naturalness and Autonomy: The Differentiation of Ethical Norm Generation. Academic Monthly, 2025, 57(7): 19-30.

      5. [5]

        ZHOU Dongping ,  LIU Andi . On the Discourse Construction and Creative Transformation of Headnotes in Traditional Chinese Law. Academic Monthly, 2025, 57(7): 12-18.

      6. [6]

        YAO Dali . Multiculturalism and the Multiplicity of Chinese Civilization. Academic Monthly, 2025, 57(7): 5-11.

      7. [7]

        LI Shi ,  YANG Gang . Capability Approach and Measures of Rural Development in China. Academic Monthly, 2025, 57(7): 94-101.

      8. [8]

        HUANG Wei ,  WANG Yang ,  CHEN Zhao . Balancing Equality and Efficiency——The Incentive and Allocation Effects of the Charity Law. Academic Monthly, 2025, 57(7): 79-93.

      9. [9]

        WANG Yishuai . Reclaiming the Participatory Rights of the Public——An Analytical Framework of Holistic Collaborative Democracy for Public Legislative Participation in Mega-city. Academic Monthly, 2025, 57(7): 102-116.

      10. [10]

        HU Jie . Social Mentality: A Path of Writing and Interpreting the History of Group Spirit. Academic Monthly, 2025, 57(7): 144-154.

      11. [11]

        XU Songying ,  HUANG Xiongying . Rationality, Balance, and Domination: The Meaning and Genealogy of “The State as Machine”. Academic Monthly, 2025, 57(7): 129-143.

      12. [12]

        XIA Yin . “Lisheng”, “Ergu” and “Manshu”: Three Figures Involved in the “Jingsheng” Incident. Academic Monthly, 2025, 57(7): 155-165.

      13. [13]

        LI Zhongmin ,  ZHANG Jianguang . Descending to the Underworld and Ascending to Immortality: The Dual Imagination of the Afterlife as Seen in Han Dynasty Pictorial Bricks. Academic Monthly, 2025, 57(7): 190-202.

      14. [14]

        LI Lan . On Tao Menghe's Contribution to The New Youth——Important Details about the Division of The New Youth. Academic Monthly, 2025, 57(7): 166-178.

    Get Citation
    PDF
    XML
    Entire Issue PDF

    Article Metrics

    Article views: 2456 Times PDF downloads: 9 Times Cited by: 0 Times

    Metrics
    • PDF Downloads(9)
    • Abstract views(2456)
    • HTML views(540)
    • Latest
    • Most Read
    • Most Cited
          通讯作者: 陈斌, bchen63@163.com
          • 1. 

            沈阳化工大学材料科学与工程学院 沈阳 110142

          1. 本站搜索
          2. 百度学术搜索
          3. 万方数据库搜索
          4. CNKI搜索

          A New Discussion on the Justification Review Method of the Principle of Proportionality—— A Perspective that Integrates Law,Economics,and Negotiation Theory

          Abstract: The lack of appropriate review methods has led to disputes over the hierarchy of the principle of legitimacy of purpose,as well as issues such as review misalignment,insufficient review,excessive subjectivity,and inaccuracy caused by some scholars simply copying the principle of reasonableness of common law to determine the inappropriate purpose in the principle of proportionality.The key to solving the problem lies in reconstructing the method of examining the legitimacy of the purpose.The principle of proportionality,the common methods of law and economics,and negotiation theory can be integrated to construct a new approach for examining the legitimacy of purposes.Starting from the “comparative” thinking,the purpose of examining the legitimacy of purposes can be classified into two categories: “the purpose of realizing (safeguarding) rights (interests)” and “the purpose of restricting rights (interests)”,and the corresponding objective and subjective content can be compared and examined.In the review process,the objective content corresponding to the purpose should be quantified and reviewed first,and then the subjective content corresponding to the purpose should be reviewed.In terms of examination standards,based on the improvement of Kaldor Hicks,the objective content corresponding to the legitimacy examination standard quantified by law and economics is that the value of “realization (protection)” is greater than “limitation”; The examination of subjective content corresponding to the purpose is achieved through equal and free negotiation.The objective and subjective content corresponding to the purpose has passed the legitimacy review,and the purpose is legitimate.By combining the advantages of the principle of proportionality and the principles of law and economics,and using the common “comparison” method of proportionality,law and economics,and negotiation theory as the connection point,we can better understand and practice the principle of proportionality.

            HTML

          Relative (14)

          目录

          沪ICP备16024018号-1  沪公网安备 31010102003103号

          ICCAS
           Chinese Chemical Society

          Address： 邮政编码：200020

          Telephone：021－53060399、53069080 Email：xsyk021@163.com

          Supported by Beijing Renhe Information Technology Co. Ltd Technical ： info@rhhz.net

          /

          DownLoad:  Full-Size Img  PowerPoint
          Return