The Application of the Principle of Proportionality in Civil Law
Date Issued
2012
Date
2012
Author(s)
Lee, Hsin
Abstract
In civil law, recent judicial practices as well as the academics have started to embrace the principle of proportionality as the foundation for their legal arguments.
Yet how the principle of proportionality is to be applied in civil law receives scant attention. Especially in Taiwan, few if any works have been dedicated to this issue. Most discussions concerning this issue spare only a few words out of their limited length in arguing whether the principle of proportionality should be applied in civil law or not, while further discussions are seldom conducted.
For example, the origin and exercise of the principle of proportionality in public law purport this principle as with the aim to prohibit excessive abuse of the state power. However, in civil law, generally regarded as no state power exists, the purpose and function of the principle of proportionality seems suspicious. Does the principle of proportionality serve the likely purpose as it does in public law? Or does it perform another distinctive function? Does the Principle of proportionality in public law conflict with the principle of private autonomy in civil law? Last but not least, is it fitting and proper for the principle of proportionality originated in public law to be applied in civil law?
This Paper is aimed to explore what civil law judicial practices and academics truly intend to mean when they use the phrase “the principle of proportionality” in their legal argument, and explore whether this principle is so used in the same context as it is used in public law.
To conducts this mission, this Paper firstly classifies relevant judicial practices and academic works into categories including petitions for proper disposition to restore reputation, adjacent relation, justifiable defense, non-competition clauses for employees, deciding the amount of money and so on. It then proceeds to make a general comparative analysis, exploring the genuine and distinctive meanings of the principle of proportionality as applied in civil law, and addresses the author’s personal opinion.
Finally as its conclusion, this Paper discusses the desirability of the principle of proportionality in civil law, especially when the function of this principle as judicial practices and the academics so intend could arguably be, or might have already been, fulfilled with the principle of good faith and the principle of prohibition of abuse of rights.
Subjects
the principle of proportionality
the principle of good faith
the principle of prohibition of abuse of rights
private autonomy
adjacent relation
Type
thesis
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