论劳动教养制度缺陷及立法构想

发布时间：2018-05-28 11:22

本文选题：劳动教养 + 缺陷　；参考：《暨南大学》2010年硕士论文

【摘要】：劳动教养制度是我国特有的一种法律制度。在劳动教养的五十多年历史中,它已成功地教育和挽救了一大批违法和轻微犯罪人员,为维护社会稳定,预防和减少违法犯罪,发挥了不可忽视的作用。但是,由于制度本身存在的严重缺陷,以及在实际运作过程中存在的种种问题,劳动教养制度已与建设社会主义法治国家的目标相背离。《中华人民共和国行政处罚法》、《立法法》出台、2004年我国宪法修正案中庄严写入“国家尊重和保障人权”条款,使其正当性和合法性遭到质疑,客观要求必须对它进行全面的改革或者立法。笔者结合公安工作中遇到的劳动教养问题,从实际出发,从理性的角度来思考劳动教养制度。首先,在回顾劳动教养制度1955年以来两个重要发展阶段的基础上,指出劳动教养在不同时期里发挥着不同社会效用的特点,是一项具有浓厚的政治色彩和行政命令色彩的强制性行政处罚措施。其次,剖析现有劳动教养制度在法理上的冲突,即劳动教养违反了“处罚法定”原则、“罪刑相适应”原则和“法律面前一律平等”原则,其执行程序缺乏正当性基础,缺乏完善的法律监督机制和法律救济机制,指出了这些问题对现行劳动教养制度造成的困惑。第三,为解决以上问题,提出要对劳动教养进行重构的重要性。只有对劳动教养制度进行重构,才能使劳动教养制度有利于尊重和保障人权,有利于限制公安机关的司法裁决权,有利于将劳动教养制度纳入司法程序。最后,按照现代法治“依法治国”的理念,提出了劳动教养制度的立法构想,明确劳动教养的法律性质、适用对象、执行期限、审批程序和执行方式等内容,并建议进一步加强劳动教养制度的改革与完善,使之能早日成为行之有效的法律制度。
[Abstract]:The system of reeducation through labor is a special legal system in our country. In the more than 50 years' history of reeducation through labor, it has successfully educated and saved a large number of illegal and minor criminals and played an important role in maintaining social stability and preventing and reducing illegal crimes. However, due to the serious shortcomings of the system itself and the problems in its practical operation, The system of re-education through labour has deviated from the goal of building a socialist country ruled by law. The Administrative punishment Law of the people's Republic of China, the Legislative Law, and the provisions of "the State respects and guarantees Human Rights" are enshrined in the 2004 amendment to the Constitution of our country. The legitimacy and legitimacy of the system are called into question, and it must be reformed or legislated comprehensively. Combining with the problems of reeducation through labor in public security work, the author thinks about the system of reeducation through labor from the point of view of reality and rationality. First of all, on the basis of reviewing the two important stages of development of the re-education through labour system since 1955, it is pointed out that reeducation through labour plays a different social role in different periods. Is a strong political color and administrative order color mandatory administrative punishment measures. Secondly, it analyzes the conflict in the legal principle of the existing system of re-education through labor, that is, it violates the principle of "punishment law", the principle of "the adaptation of crime and punishment" and the principle of "equality before the law", and its execution procedure lacks the basis of legitimacy. The lack of perfect legal supervision mechanism and legal remedy mechanism points out the puzzlement caused by these problems to the current reeducation through labor system. Third, in order to solve the above problems, put forward the importance of reconstructing reeducation through labor. Only by reconstructing the system of re-education through labor can we make the system of reeducation through labour be beneficial to respect and safeguard human rights, to limit the judicial power of public security organs, and to bring the system of re-education through labor into the judicial procedure. Finally, according to the concept of "ruling the country by law" of modern rule of law, this paper puts forward the legislative conception of the system of re-education through labor, and clarifies the legal nature, the applicable object, the time limit of execution, the procedure of examination and approval and the mode of execution, etc. It is suggested that the reform and perfection of the reeducation through labour system should be further strengthened so that it can become an effective legal system as soon as possible.
【学位授予单位】：暨南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D926.8

【参考文献】