从法律视角看劳动教养制度的改革

发布时间：2018-03-21 07:19

本文选题：劳动教养制度　切入点：劳动教养制度缺陷　出处：《湖南师范大学》2010年硕士论文　论文类型：学位论文

【摘要】： 作为一种在我国存在了五十多年的制度,劳动教养制度可以说是有鲜明中国特色的一种制度。但这种制度发展到今天,在以法治原则作为判断标准的前提下,是否符合法治国家的要求已越来越成为备受瞩目的问题。特别是随着我国改革开放的深入,在日益加强的国际人权对话和交流中,劳动教养的法治化成了一个更为刻不容缓的热点问题,关于劳动教养制度的“废除论”和“完善论”在激烈地大碰撞着。但一种制度的产生具有其特定的历史根据,因而对其存在合理性的考察必须以特定的时空背景作为判断的主要依据。所以不能简单地抹杀劳动教养制度,亦不能任期弊端发展下去而不改,而应该认真考察、分析这一制度存在的主要问题与弊端,寻求改革的正确途径和有效措施。劳动教养制度存在重大制度性缺陷：一是劳动教养制度的法律依据不足；二是劳教的性质与其实际严厉程度不相匹配。限制被劳教人员的人身自由期限长达1-3年,最高可达4年。剥夺人身自由的强度虽与监狱有所区别,但从本质无异的情况来看,其性质与刑事处罚无异。在与刑罚相衔接时,劳教处罚更加严厉。一些不够适用短期徒刑或拘役、管制的对象,却可以决定实行长达1-3年、甚至4年的劳教；三是劳教的审批和管理缺乏必要的司法程序和司法监督。改革劳动教养制度的思路是：一要适用条件法定化；二是要劳教处分轻缓化；三是要执行手段多样化；四是要劳教程序司法化。坚持的原则是：一是必须始终坚持依法治国的原则；二是坚持保障人权与维护社会秩序相统一、相均衡的原则；三是坚持统一、完整、全面、规范立法的原则；四是坚持积极稳妥改革的原则。在改革与完善劳动教养制度,使劳动教养制度司法化,尽快出台《违法行为矫治法》的具体实践中,有四项内容是必须重点改革的：一是要改革劳动教养制度的性质；二是要改革劳动教养制度的收容对象；三是要改革劳动教养制度的审批程序；四是要改革劳动教养制度的管理方式。这一切的前提,是必须尽快通过《违法行为矫治法》,使这项制度有法可依,加快立法的进程可先小范围尝试,再地方先行,最后在全国推广。
[Abstract]:As a system that has existed in our country for more than 50 years, the system of re-education through labor can be said to have distinct Chinese characteristics. Whether it conforms to the requirements of a country governed by the rule of law has become an increasingly high-profile issue. In particular, with the deepening of China's reform and opening up, and in the course of increasing international dialogue and exchanges on human rights, The rule of law of reeducation through labor has become a more urgent hot issue. The theory of abolition and perfection of the system of re-education through labor is colliding with each other. But the emergence of a system has its specific historical basis. Therefore, the investigation of the rationality of its existence must be based on a specific space-time background as the main basis of judgment. Therefore, the system of re-education through labour cannot be simply obliterated, nor can the malpractice of tenure be developed without modification, but it should be carefully investigated. The main problems and disadvantages of this system are analyzed, and the correct ways and effective measures of reform are sought. There are major institutional defects in the system of re-education through labor: first, the legal basis of the system is insufficient; second, the nature of re-education through labour does not match its actual severity. Up to four years. Although the intensity of deprivation of personal liberty is different from that of prisons, the nature of deprivation of person is no different from that of criminal punishment in terms of its nature. The punishment of reeducation through labour is more severe. Some of the objects under control are not suitable for short term imprisonment or criminal detention, but they may decide to carry out reeducation through labour for 1-3 years or even 4 years; third, the examination and approval and management of reeducation through labour lacks the necessary judicial procedure and judicial supervision. The train of thought of reforming the system of reeducation through labor is as follows: first, to apply conditions and legalization; second, to slow down the punishment of re-education through labor; third, to diversify the means of implementation; Fourth, the judicial process of re-education through labour. The principles to be adhered to are: first, the principle of governing the country according to law must always be adhered to; second, the principle of unity and balance between safeguarding human rights and maintaining social order; and third, the principle of unity, integrity, and comprehensiveness. Fourth, adhere to the principle of positive and steady reform. In the concrete practice of reforming and perfecting the system of reeducation through labor, making the system of reeducation through labor judicature and issuing the Law of Correction of illegal acts as soon as possible, there are four contents that must be reformed: first, to reform the nature of the system of re-education through labor; The second is to reform the receiving object of the re-education through labor system; the third is to reform the examination and approval procedure of the re-education through labor system; and the fourth is to reform the management method of the re-education through labor system. It is necessary to pass the Law on Correction of illegal acts as soon as possible, so that this system can be governed by laws, and the process of speeding up legislation can be tried in a small scope first, followed by places first, and finally popularized throughout the country.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D926.8

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