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The Principle of Proportionality and the Principle of Proportionality between Offense and Punishment in China’s Administrative Penalty Discretion: Toward a Coordinated Application Framework

Author(s)

Yan Zhang1, Yiqun Wang2

Affiliation(s)

1School of Administrative Law (Disciplinary Inspection and Supervision), Northwest University of Political Science and Law, Xi’an, Shaanxi, China 2Senior Partner, Beijing Jincheng Tongda & Neal (Shanghai) Law Firm, Shanghai, China

Abstract

This paper examines the normative relationship between the principle of proportionality and the principle of proportionality between offense and punishment in the exercise of administrative penalty discretion in China. It focuses on whether, and to what extent, the general principle of proportionality retains an independent function where the more specific requirement of proportionality between offense and punishment has already been established. Drawing on theoretical analysis and selected judicial cases, this paper argues that the two principles are closely related but perform distinct and complementary functions. The principle of proportionality between offense and punishment provides a substantive standard for assessing whether the severity of a sanction corresponds to the nature, circumstances, and consequences of the violation, whereas the principle of proportionality provides a structured framework for examining the relationship between regulatory purposes, administrative measures, and individual burdens. Building on this, this paper proposes a two-level review model that combines the substantive assessment of whether a penalty is appropriate with a structured review based on the principle of proportionality. This approach not only serves to more effectively constrain the exercise of discretion in administrative penalties, but also helps administrative authorities to provide a more comprehensive justification for their penalty decisions, while offering the courts a clearer analytical framework for reviewing administrative penalties.

Keywords

Principle of Proportionality; Proportionality between Offense and Punishment; Administrative Penalty Discretion; Judicial Review

References

[1] Hartmut Maurer, General Administrative Law, translated by Gao Jiawei, Law Press, 2000:106–107. [2] Robert Alexy. A Theory of Constitutional Rights, translated by Julian Rivers, Oxford University Press, 2002:66–69. [3] Jiang Hongzhen. The Normative Foundation and Application Path of the Principle of Proportionality: An Administrative Law Perspective, Law Review, 2021(1):52–66. [4] Liu Quan. The Normative Structure and Application of the Principle of Proportionality between Offense and Punishment, China Legal Science, 2023(2):129–148. [5] Yang Dengfeng & Li Qing. The Relationship between the Principle of Proportionality and the Principle of Proportionality between Offense and Punishment in Administrative Penalties,” SJTU Law Review, 2017(4):9–21. [6] Yin Shaocheng. The Application of the Principle of Proportionality between Offense and Punishment in Administrative Penalties, Journal of Law Application, 2025(7):77–91. [7] Zheng Qi. A Normative Study on the Application Techniques of Administrative Discretion Benchmarks: A Case Study of the Administrative Penalty Case Concerning the Use of the Term ‘Best’ by Fang Linfu Roasted Seeds and Nuts Shop, Political Science and Law, 2019(3):89–100. [8] Chen Taiqing. The Judicial Application of the Principle of Proportionality between Offense and Punishment, Law Science, 2021(10):48–63. [9] Cao Chen. The Identification and Application of the “Manifestly Improper” Standard in Judicial Review of Environmental Administrative Penalties: An Empirical Analysis Based on 137 Judgments, Journal of Beijing Institute of Technology (Social Sciences Edition), 2024, 26(4):76–85. [10]Li Qing. On the Judgment of Proportionality between Offense and Punishment,” Administrative Law Review, 2021(6):28-38. [11]Zhou Youyong. The Rule of Law Development and Limits of Administrative Penalty Discretion Benchmarks: A Review of Article 34 of the Revised Administrative Penalty Law, Law Science, 2021, 39(5):53–61. [12]Zhai Dongtang. The Construction of Administrative Penalty Discretion Benchmarks: Taking Customs Administrative Penalties as an Example, Administrative Law Review, 2024(1):123–134. [13]Liu Quan. The Application of the Principle of Proportionality in Administrative Judgments, China Legal Science, 2019(3):84–104. [14]Yu Lingyun. The Principle of Proportionality in Administrative Law, Jurists Review, 2002(2):31–38.