University of Helsinki
On 20 June 2023, the Finnish China Law Center will hold an online mini seminar on “The Application of the Proportionality Principle by Chinese Courts” at 10:15-11:45 Helsinki time (9:15-10:45 CEST / 15:15-16:45 CST).
The event will be chaired by Björn Ahl, Professor and Chair of Chinese Legal Culture at the University of Cologne and President of the European China Law Studies Association.
The seminar programme can be found here.
Register by 18 June at:
https://www.lyyti.in/The_Application_of_the_Proportionality_Principle_by_Chinese_Courts_4133
Background of the presentation
Selective Application of the Principle of Proportionality in Chinese Administrative Litigation
This paper provides a quantitative analysis of the application of the principle of proportionality in administrative trials, based on published online judicial decisions. The analysis reveals an imbalanced impact with regards to its three sub-principles. We observe that the level of support obtained from national legislation in applying the principle of proportionality, a factor previously overlooked, significantly influences the outcomes. Our findings indicate that both the principle of necessity and the narrowly-defined principle of proportionality demonstrate mediating effects in the correlation between national legislation and judicial decisions, suggesting that judges selectively apply the proportionality principle in administrative trials. We propose two strategies to promote the localization of the principle of proportionality. For the principles of appropriateness and necessity, actualization can be achieved in line with the current surge in administrative law codification. As for the narrowly-defined principle of proportionality, a proper understanding and handling of the relationship between public and private interest is essential. Furthermore, judges should be urged to explicitly delineate the criteria for assessing relevant interests during their reasoning process to improve the objectivity of interest measurement.
State-centric Proportionality Analysis in Chinese Administrative Litigation
This article examines the application of proportionality in Chinese administrative litigation over the last two decades, and argues that courts in administrative litigation that serve the party-state and tend to uphold state/collective interest have altered proportionality to be state-centric. It finds that the courts invoked proportionality in a negligible portion of all administrative litigation judgments and had inadequate emphases on protecting individual rights. Proportionality has not appreciably assisted the courts in enhancing their oversight of governmental power and protection of individual rights. This article suggests that this is attributed to the restricted function of administrative litigation in China’s party-state governance structure and owing to the country’s long-held belief that public interest takes precedence over individual rights. Administrative litigation, which China’s ruling party employs to resolve principal-agent issues, is seriously constrained. The courts are expected to review the formal legality of executive actions, but not their substance. Informed by the Chinese human rights belief, which favors collectivism over individualism, the courts are skewed toward public interest in the balancing analysis when applying proportionality.
About the speakers
Dr. Xiaohong Yu is an Associate Professor of Political Science at the School of Social Sciences, Tsinghua University. She earned her Ph.D. in Political Science from Columbia University. Prior to her position at Tsinghua, she served as an An Wang Postdoctoral Fellow at the Fairbank Center for Chinese Studies and was a Visiting Lecturer in the Department of Government at Harvard University. Her primary research interests include Chinese politics, comparative judicial politics, and empirical legal studies. She continually explores China’s judicial reforms, the interplay between law and politics in China, and instructs courses such as “Judicial Politics” and “Law and Politics in the Era of Big Data.” Her scholarly work has been featured in leading domestic and international journals and academic presses, including the Journal of Empirical Legal Studies, China Review, Cambridge University Press, CASS Journal of Political Science, Tsinghua Law Review, Open Times, and China Law Review, among others.
Dr. Shiling Xiao is a Post-doctor Research Fellow at the School of Law, City University of Hong Kong. He obtained his PhD in law from HKU, MPhil in international and comparative law from the University of Macau, and LLB from the Southwest University of Political Science and Law. He was a practising lawyer in Mainland China and was called to the bar in 2018. His research interests embrace comparative public law, human rights law and judicial review. His publications appear in International Journal of Constitutional Law, Hong Kong Law Journal, Journal of Comparative Law and others.
