强制隔离戒毒制度研究
发布时间：2018-07-28 19:23
【摘要】：1979年我国发现第一起毒品案件前,由于特殊历史条件造成的闭关锁国状态使我们曾经享有“无毒国”的所谓盛誉30年。随着改革开放,国家经济飞速发展,中国与国际联系日益紧密,已经成为世界性问题的毒品问题也给中国社会造成严重危害。近年来,我国吸毒人群的比例逐年递增,戒毒人员复吸率居高不下,吸毒人群开始呈现低龄化现象,由此导致的诱发暴力犯罪等一系列社会矛盾被引发,极大破坏社会和谐。《中华人民共和国禁毒法》和《戒毒条例》的出台,标志着我国完成了包含全部过程的完整戒毒体系的构建,在整合原有的强制戒毒和劳教戒毒的基础上,规定了全新的强制隔离戒毒措施。全新的戒毒制度从“以人为本”的理念出发,将强制隔离戒毒人员定位为“违法者”、“病人”和“受害者”,突显了教育戒治效果最大化的立法目的。本人从行政法学的角度,以《禁毒法》、《戒毒条例》等法律法规为基石,结合工作实践,对强制隔离戒毒制度进行研究。第一部分,回顾了强制隔离戒毒制度的历史,阐述了强制隔离戒毒制度的主要内容。新中国成立之前,从清朝到国民党政府对强制戒毒都制定了相应的规定,中国共产党在革命根据地也制定了相关惩治鸦片犯罪的禁毒规定;新中国成立后,在《禁毒法》出台前,对吸毒成瘾人员一律予以强制戒毒是当时戒毒工作的基本原则,《禁毒法》出台后,强制隔离戒毒是戒毒模式中的一种(其他模式包括自愿戒毒、社区戒毒和社区康复)。强制隔离戒毒制度主要由《禁毒法》规定,包括强制隔离戒毒的决定机关、执行机关和强制隔离戒毒的法定情形等原则性内容;其他有相关的法律法规规章和规范性文件,就强制隔离戒毒人员的接收、管理、教育、生活卫生、解除、场所设置等方面进行了具体规定。第二部分,介绍了其他国家和地区关于强制隔离戒毒制度及其有效措施,主要介绍了将吸毒行为定性为犯罪的美国和德国、规定用医疗措施代替刑罚措施的英国和日本、对吸毒行为免于起诉处罚的芬兰和泰国以及比较了我国台湾地区戒毒制度和措施。第三部分,结合强制隔离戒毒所的运行实践和理论分析,论述我国强制隔离戒毒制度的不足。在法律体系方面强制隔离戒毒制度存在对执法主体忽视、执行双轨制运行模式、与其他戒毒模式界限不清等缺陷。执行强制隔离戒毒基本流程时,在审批决定环节缺失正当司法程序、收治环节工作制度存在漏洞、执行环节正当性不足以及缺乏有效的救济程序。在配套制度方面缺失监管机制、人权保障、后续照管等制度,同时强制隔离戒毒与其他戒毒模式之间缺乏有效衔接。第四部分,落实问题解决,针对我国强制隔离戒毒制度存在的缺陷提出完善的构想。建议从重构执法权、确定执法主体法律地位和执法依据、理顺强制隔离戒毒与其他戒毒模式关系三个方面完善强制隔离戒毒法律体系。通过完善戒毒监督工作、加强执行期间戒毒人员基础权利保障、完善的戒毒人员收治制度和执法工作中相关制度来弥补强制隔离戒毒制度配套制度的不足。同时要引入司法裁定程序、完善救济程序和毒瘾检测标准来保证强制隔离戒毒基本流程的完善。最后建议通过培养执法队伍工作理念和加强各个戒毒模式主管部门的沟通联系来为强制隔离戒毒工作保驾护航。
[Abstract]:Before the discovery of the first drug case in China in 1979, we have enjoyed the so-called "non toxic country" for 30 years because of the state of closed state in the state caused by special historical conditions. With the reform and opening up, the national economy has developed rapidly, China has become increasingly closely connected with the international community, and has become the drug problem of the world's nature. In recent years, the proportion of drug addicts in China has increased year by year, the relapse rate of drug addicts is high, the drug addicts are beginning to present the phenomenon of low age, and a series of social contradictions caused by the resulting violence crimes have been triggered, and the social harmony is greatly destroyed. The introduction of the "People's Republic of China anti drug law >" and "drug abstinence Ordinance >" symbolizes me. China has completed the construction of a complete drug abstinence system including the whole process. On the basis of the integration of the original compulsory detoxification and labor education and detoxification, a new compulsory isolation and detoxification measure is set up. The new detoxification system, starting from the concept of "people-oriented", defines the compulsory isolation detoxification personnel as "offenders", "patients" and "victims". It highlights the legislative purpose of maximizing the effect of educational discipline. From the perspective of administrative law, I take the law as the cornerstone of the law of "drug control" and "detoxification regulations" as the cornerstone, and combine work practice to study the compulsory isolation and detoxification system. In the first part, it reviews the history of compulsory isolation and detoxification, and expounds the main system of compulsory isolation and detoxification. Before the founding of new China, the government of the Qing Dynasty to the Kuomintang government had formulated corresponding regulations on compulsory detoxification. The Communist Party of China had also formulated a prohibition against opium crimes in the revolutionary base areas. After the establishment of the new China, the compulsory drug abstinence for drug addicts was the basis of the drug abstinence work before the establishment of the anti drug law. This principle, after the promulgation of the law on drug control, is one of the modes of detoxification (other modes including voluntary detoxification, community detoxification and community rehabilitation). The system of compulsory isolation and detoxification mainly consists of the provisions of the law on drug control, including the decisive organs of compulsory isolation and detoxification, the enforcement organs and the statutory situations of compulsory isolation and abstinence; He has relevant laws, regulations, rules and regulations and normative documents, and makes specific provisions on the acceptance, management, education, living hygiene, relieving and setting up of the drug addicts. In the second part, it introduces the system of compulsory isolation and its effective measures in other countries and regions, and mainly introduces the characterization of drug abuse. The crime of the United States and Germany, the provision of medical measures to replace the punishment of the United Kingdom and Japan, Finland and Thailand, Finland and Thailand, and comparison of the system and measures for drug abuse in the Taiwan region of our country. In the legal system, the compulsory isolation and detoxification system has the defects of neglecting the subject of law enforcement, implementing the dual track system operation mode and the other detoxification modes. When implementing the basic process of compulsory isolation and detoxification, there are lack of due judicial procedures in the examination and approval process, loopholes in the annulus work system and the legitimacy of the execution link. Enough and lack of effective relief procedures. Lack of regulatory mechanism in the supporting system, human rights protection, follow-up care and other systems, and the lack of effective link between the separation of drug addiction and other drug withdrawal mode. The fourth part, the implementation of the problem solution, in view of the defects of the system of compulsory isolation detoxification in China put forward a perfect concept. To establish legal rights, determine the legal status of the subject of law enforcement and the basis of law enforcement, to perfect the legal system of compulsory isolation and detoxification in three aspects of the relationship between compulsory isolation and detoxification and other detoxification modes. Through improving the supervision of drug abstinence, strengthening the protection of the basic rights of the detoxification personnel during the period of execution, the perfect treatment system of drug addicts and the relevant system in the law enforcement work At the same time, we should introduce the judicial ruling procedure, improve the relief procedure and the standard of drug addiction detection to ensure the improvement of the basic process of compulsory isolation and drug addiction. Finally, it is suggested that by training the work idea of the law enforcement team and strengthening the communication links between the various detoxification departments in charge of the detoxification departments in order to make the compulsory isolation. Take care of the detoxification work.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.8
本文编号：2151334
[Abstract]:Before the discovery of the first drug case in China in 1979, we have enjoyed the so-called "non toxic country" for 30 years because of the state of closed state in the state caused by special historical conditions. With the reform and opening up, the national economy has developed rapidly, China has become increasingly closely connected with the international community, and has become the drug problem of the world's nature. In recent years, the proportion of drug addicts in China has increased year by year, the relapse rate of drug addicts is high, the drug addicts are beginning to present the phenomenon of low age, and a series of social contradictions caused by the resulting violence crimes have been triggered, and the social harmony is greatly destroyed. The introduction of the "People's Republic of China anti drug law >" and "drug abstinence Ordinance >" symbolizes me. China has completed the construction of a complete drug abstinence system including the whole process. On the basis of the integration of the original compulsory detoxification and labor education and detoxification, a new compulsory isolation and detoxification measure is set up. The new detoxification system, starting from the concept of "people-oriented", defines the compulsory isolation detoxification personnel as "offenders", "patients" and "victims". It highlights the legislative purpose of maximizing the effect of educational discipline. From the perspective of administrative law, I take the law as the cornerstone of the law of "drug control" and "detoxification regulations" as the cornerstone, and combine work practice to study the compulsory isolation and detoxification system. In the first part, it reviews the history of compulsory isolation and detoxification, and expounds the main system of compulsory isolation and detoxification. Before the founding of new China, the government of the Qing Dynasty to the Kuomintang government had formulated corresponding regulations on compulsory detoxification. The Communist Party of China had also formulated a prohibition against opium crimes in the revolutionary base areas. After the establishment of the new China, the compulsory drug abstinence for drug addicts was the basis of the drug abstinence work before the establishment of the anti drug law. This principle, after the promulgation of the law on drug control, is one of the modes of detoxification (other modes including voluntary detoxification, community detoxification and community rehabilitation). The system of compulsory isolation and detoxification mainly consists of the provisions of the law on drug control, including the decisive organs of compulsory isolation and detoxification, the enforcement organs and the statutory situations of compulsory isolation and abstinence; He has relevant laws, regulations, rules and regulations and normative documents, and makes specific provisions on the acceptance, management, education, living hygiene, relieving and setting up of the drug addicts. In the second part, it introduces the system of compulsory isolation and its effective measures in other countries and regions, and mainly introduces the characterization of drug abuse. The crime of the United States and Germany, the provision of medical measures to replace the punishment of the United Kingdom and Japan, Finland and Thailand, Finland and Thailand, and comparison of the system and measures for drug abuse in the Taiwan region of our country. In the legal system, the compulsory isolation and detoxification system has the defects of neglecting the subject of law enforcement, implementing the dual track system operation mode and the other detoxification modes. When implementing the basic process of compulsory isolation and detoxification, there are lack of due judicial procedures in the examination and approval process, loopholes in the annulus work system and the legitimacy of the execution link. Enough and lack of effective relief procedures. Lack of regulatory mechanism in the supporting system, human rights protection, follow-up care and other systems, and the lack of effective link between the separation of drug addiction and other drug withdrawal mode. The fourth part, the implementation of the problem solution, in view of the defects of the system of compulsory isolation detoxification in China put forward a perfect concept. To establish legal rights, determine the legal status of the subject of law enforcement and the basis of law enforcement, to perfect the legal system of compulsory isolation and detoxification in three aspects of the relationship between compulsory isolation and detoxification and other detoxification modes. Through improving the supervision of drug abstinence, strengthening the protection of the basic rights of the detoxification personnel during the period of execution, the perfect treatment system of drug addicts and the relevant system in the law enforcement work At the same time, we should introduce the judicial ruling procedure, improve the relief procedure and the standard of drug addiction detection to ensure the improvement of the basic process of compulsory isolation and drug addiction. Finally, it is suggested that by training the work idea of the law enforcement team and strengthening the communication links between the various detoxification departments in charge of the detoxification departments in order to make the compulsory isolation. Take care of the detoxification work.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.8
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