劳动教养制度及其立法完善

发布时间：2018-05-12 05:38

本文选题：劳动教养制度 + 现实困境　；参考：《西南政法大学》2010年硕士论文

【摘要】： 劳动教养制度是一个极具中国特色的话题,在我国刑事法领域逐渐确立罪刑法定和无罪推定原则,进而推进刑事法治建设的历史背景下,劳动教养制度逐步走入了我国学者的研究视野,受到了越来越多的关注。当前,国家司法体制和工作机制改革深入推进,不难预见,劳动教养制度必定是下一轮司法体制和工作机制改革的重要内容,新的劳动教养法也将在不久的将来问世。在新的劳动教养法诞生的前夜,笔者选择研讨劳动教养这一重大的理论和现实问题,以期对劳教制度有更深入的认识,对劳教制度的立法完善起到抛砖引玉的作用。全文共分三大部分：第一部分：劳动教养制度的历史嬗变：从政治性到法律性的移位。该部分通过对劳动教养制度50年发展历程的描述,简要勾勒出劳动教养制度从政治性向法律性渐变的历史轨迹。通过该部分内容的阐释,我们不难看出：劳动教养制度之所以在今天会遭遇到种种困境,一个很重要的原因就是该制度在产生之初即带有明显的政治色彩,而对公民人身自由的保障则关注较少,这也为劳动教养制度在日后的现实运作中变异为一种极易侵犯人权的制度埋下了隐患。第二部分：劳教制度的现实聚焦：困境重重的劳教制度。该部分着重介绍劳动教养制度在现实运作中所存在的种种问题,分别从劳动教养制度与行政处罚法和立法法的抵触、适用对象不明确、劳教性质不确定、劳教程序不正当、执行特色不鲜明等五个方面说明劳动教养制度在现实运作中所处的艰难困境。第三部分：劳教制度的未来前瞻：劳动教养的立法完善。该部分首先论证了劳动教养废除论的不可取之处和保留劳动教养制度的必要性,解决劳动教养立法的前提问题；接着论述了劳动教养制度的宏观考量——模式选择,通过对完善劳动教养制度的三种思路的分析和比较,笔者着重论述了采用独立的教养处遇模式的理论正当性和现实合理性；最后论述了劳教立法的微观考量——相关制度规则的初步构想,分别从劳动教养的立法名称、适用对象、劳教期限、适用程序、执行模式等五个方面对未来劳动教养立法的具体问题进行阐述。
[Abstract]:The system of re-education through labor is a topic with Chinese characteristics. In the field of criminal law of our country, the principles of crime and presumption of innocence are gradually established, and then the construction of criminal rule of law is promoted in the historical background. The system of reeducation through labor has gradually entered the research field of Chinese scholars and received more and more attention. At present, the reform of the national judicial system and the working mechanism is advancing deeply. It is not difficult to predict that the re-education through labor system will be an important part of the next round of reform of the judicial system and the working mechanism, and the new law of re-education through labor will also come out in the near future. On the eve of the birth of the new reeducation through labor law, the author chooses to study the important theoretical and practical problems of reeducation through labor, in order to have a deeper understanding of the system of reeducation through labour and to play a role in the legislative perfection of the system of reeducation through labor. The thesis is divided into three parts: The first part: the historical evolution of the reeducation through labor system: the shift from political to legal. Through the description of the development of the reeducation through labor system for 50 years, this part briefly outlines the historical track of the gradual change from the political to the legal nature of the re-education through labor system. Through the interpretation of this part, it is not difficult to see that one of the most important reasons for the difficulties encountered by the re-education through labour system today is that it has a clear political color at the beginning of its existence. However, less attention is paid to the protection of citizens' personal freedom, which lays a hidden danger for the system of reeducation through labor to mutate into a system which can easily violate human rights in the future. The second part: focus on the reality of reeducation through labour system: the system of reeducation through labour with many difficulties. This part focuses on the problems existing in the practical operation of the system of re-education through labor, respectively, from the conflict between the system of re-education through labour and the administrative punishment law and the legislative law, the applicable object is not clear, the nature of re-education through labour is uncertain, and the procedure of re-education through labour is not proper. There are five aspects to explain the difficult predicament of the system of reeducation through labor in the practical operation. The third part: the future prospect of reeducation through labor system: the legislative perfection of reeducation through labor. In this part, the author first demonstrates the undesirability of abolishing the theory of reeducation through labor and the necessity of retaining the system of reeducation through labor, and then discusses the macro consideration of the system of reeducation through labor-the choice of mode. Through the analysis and comparison of three ways of perfecting the system of re-education through labor, the author emphatically discusses the theoretical legitimacy and the realistic rationality of adopting the independent correctional treatment mode. Finally, it discusses the microcosmic consideration of the legislation of re-education through labor-the preliminary conception of the relevant system rules, respectively, from the legislative name, the applicable object, the term of re-education through labour, the applicable procedure, respectively. Implementation mode and other five aspects of the future legislation of re-education through labor to elaborate on specific issues.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D926.8

【引证文献】