就业中的前科歧视研究
发布时间：2018-08-09 14:09
【摘要】： 就业对于和谐社会的构建至关重要。我国目前在就业中存在多种类型的歧视,对有前科公民违法犯罪记录的歧视即为其中之一。 在上海进行的对有犯罪前科公民就业状况的实证调查表明:虽然国家和政府出台了很多安置有犯罪前科公民就业的措施,有前科公民的实际就业状况很糟糕,其中最大的障碍也即最严重的歧视是对违法犯罪前科的歧视。我国现行很多法律法规也明确严格限制有前科公民的就业资格,受到限制的职业种类广泛,造成严重的职业隔离。 从反就业歧视的角度来说,“前科”的界定应该比较宽泛,即凡因违法违纪而被记录在案的事实都属于前科。前科歧视应定义为针对有前科公民实施的旨在克减、限制或剥夺其法律权利的任何不合理的区别对待措施。前科歧视目前在我国主要表现为直接歧视,其构成要件主要是对有前科公民权利的剥夺或限制构成了不合理的差别对待。前科歧视的核心问题为对有前科公民的差别待遇是否合理。 我国现行法律法规对有前科公民就业资格的剥夺或限制构成了差别对待,从报应刑罚主义和社会防卫的角度来看,这种限制有一定的合理性,但是,实质上这种差别待遇是不合理的。不合理的原因有:这种差别对待构成不合理归类;违背了“责任相称”原则;违背了马克思主义哲学精神;侵犯了平等就业权;同时与诸多现代刑事政策相违背。借鉴德国法上的比例原则来分析,这种差别待遇也是不符合适当性原则、必要性原则和法意相称原则。鉴于此,我国现行法律法规对有前科公民就业资格的剥夺构成了歧视。 从宪法学的角度来分析,前科歧视的本质是侵犯了有前科公民的平等就业权。禁止前科歧视的关键是保障形式平等,核心是保障有前科公民的起点平等,同时辅以实质平等的保障。从这种差别待遇产生的根源来分析,前科歧视违反了不当联结禁止原则。 我国应当立法禁止前科歧视。主要原因有:法律禁止前科歧视体现了法的正义性,符合人道主义原则;禁止前科歧视有利于违法犯罪者复归社会,有利于社会的稳定;禁止前科歧视是发展市场经济的需要;禁止前科歧视是尊重和保障人权的需要。 通过对世界各国对有前科公民的公务员资格的比较研究,我们发现中国是对有前科公民公务员资格限制比较严格的国家之一。世界上制定反就业歧视的国家中,在法律中明确禁止前科歧视的国家很少。加拿大、韩国等国的立法是明确禁止基于犯罪记录的歧视。美国有少数州有类似的立法。在美国司法实践中,法院审理前科歧视案件采取的是合理性审查标准,因此,涉及限制有前科公民就业资格的案件大都判为合宪。国外立法和实践对中国的启示是:我们应该采取宽容的原则来合理限制有前科公民的就业资格,将限制的程度限定在是否与职业有关。 我国应从立法、执法和司法三个层面来保障有前科的公民不受歧视。 在立法方面,首先,法律应明确禁止前科歧视,立法中要秉持利益平衡原则,平衡社会公共安全与有前科者的个人利益,平衡有前科者的平等就业权与用人单位的用人自主权;同时采纳关联性原则和有利原则。其次,我国应逐步废除或修改现行限制或剥夺有前科公民就业资格的法律法规。主要修改方向为:限制有与职业不相容的违法犯罪前科者的就业资格;应将限制或剥夺就业资格的人群限定在有特定犯罪前科的公民;应完全排除对过失犯之限制;应完全废除终身限制就业资格之法律;应排除对缓刑期满者之就业资格限制,应排除对承担防卫过当或避险过当刑事责任者之就业资格;应完全排除假释考验期满者之就业资格限制。 行政机关应通过正确执法来保护有前科者不受歧视。同时,我国应当形成一个以私意诉讼(包括传统的民事诉讼和行政诉讼)为基础,以公益诉讼为补充,以宪法诉讼为后盾的符合中国国情、立体的诉讼体系来保障前科者的公平就业权。
[Abstract]:Employment is of great importance to the construction of a harmonious society. There are many types of discrimination in our country, and one of the discrimination against the record of criminal offenses of the former citizens is one of them.
An empirical investigation of the employment status of criminal pre criminal citizens in Shanghai shows that, although the state and the government have introduced many measures for the employment of criminal pre criminal citizens, the actual employment situation of the former citizens is very bad, and the biggest obstacle is that the most serious discrimination is the discrimination against the criminal offense. Laws and regulations also strictly restrict employment qualifications of former citizens, and a wide range of restricted occupations, resulting in serious occupational segregation.
From the point of view of anti employment discrimination, the definition of "criminal record" should be more broad, that is, the fact that the facts are recorded in the case of violation of law and discipline are all the former. The former discrimination should be defined as any unreasonable treatment measures aimed at reducing, restricting or depriving the legal rights of the former citizens. The main component of the state is direct discrimination, which constitutes an unreasonable and differential treatment of the deprivation or restriction of the civil rights of the former criminal. The core of the discrimination in the former section is whether the differential treatment of the former citizens is reasonable.
The current laws and regulations in China constitute a differential treatment for the deprivation or restriction of the qualifications of the former citizens. From the perspective of the retribution and social defense, this limitation is reasonable. However, in essence, this kind of differential treatment is unreasonable. The principle of "proportionality of responsibility"; violating the spirit of Marx's philosophy; violating the right to equal employment; contrary to many modern criminal policies. Using the principle of proportionality in German law as a reference, this differential treatment is also inconsistent with the principle of appropriate sex, the principle of necessity and the principle of legal proportionality. In view of this, our current laws and regulations are The deprivation of employment qualifications of citizens with criminal record constitutes discrimination.
From the angle of constitutionalism, the essence of discrimination in the front is to infringe on the equal right to employment of the former citizens. The key to prohibiting former discrimination is the equality of security forms. The core is to guarantee the equality of the starting point for the former citizens and the guarantee of the substantive equality. The principle of joint prohibition.
Our country should legislate against former discrimination. The main reasons are: the law prohibition of discrimination before the law embodies the justice of law and the principle of humanitarianism; the prohibition of previous discrimination is conducive to the return of the offenders to the society and the social stability; the prohibition of previous discrimination is the need for the development of the market economy; the prohibition of previous discrimination is the respect for and protection of human rights. The need.
We have found that China is one of the countries with stricter restrictions on the qualification of civil servants in the past. In the world, there are few countries that explicitly prohibit discrimination in the law. The legislation of Canada, South Korea and other countries is clearly prohibited. To stop discrimination based on criminal records. There are similar legislation in a few states in the United States. In the judicial practice of the United States, the court takes a standard of reasonableness in hearing the case of prejudice. Therefore, most cases involving restrictions on the qualifications of the former citizens are judged to be constitutionality. The Enlightenment of foreign legislation and practice to China is that we should take tolerance. The principle of limiting the employment qualification of a former citizen is limited to whether it is related to occupation.
Our country should protect the citizens with previous conviction from the three levels of legislation, law enforcement and justice.
In the legislative aspect, first of all, the law should clearly prohibit the former discrimination. In the legislation, we should uphold the principle of balance of interests, balance the social public safety and the personal interests of the former practitioners, balance the equal employment rights of the former practitioners and the employers' autonomy, and adopt the relevant original principles and favorable principles. Secondly, China should gradually abolish or amend our country. The current restrictions or deprivation of the qualifications for employment of a former citizen. The main revision is to limit the employment qualifications of a criminal offender who is incompatible with a profession; a person who is restricted or deprived of the employment qualification should be limited to a citizen with a specific criminal record; the limitation on the offense should be completely excluded; the life-long limitation should be completely abolished. The law of employment qualification should exclude the restrictions on the employment qualification of the expiry of probation, and should exclude the qualifications for the employment of those who have been responsible for the excessive defense or to avoid the risk of being a criminal liability; the qualification limit of the expiry of the probation of the probation of parole should be completely excluded.
The administrative organs should protect the former subjects from discrimination through correct law enforcement. At the same time, our country should form a legal system based on private meaning litigation (including traditional civil litigation and administrative litigation), supplemented by public interest litigation and a constitutional suit in accordance with the national conditions of China, to ensure the fair employment right of the former practitioners.
【学位授予单位】：上海交通大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：C913.2;D920.4
本文编号：2174321
[Abstract]:Employment is of great importance to the construction of a harmonious society. There are many types of discrimination in our country, and one of the discrimination against the record of criminal offenses of the former citizens is one of them.
An empirical investigation of the employment status of criminal pre criminal citizens in Shanghai shows that, although the state and the government have introduced many measures for the employment of criminal pre criminal citizens, the actual employment situation of the former citizens is very bad, and the biggest obstacle is that the most serious discrimination is the discrimination against the criminal offense. Laws and regulations also strictly restrict employment qualifications of former citizens, and a wide range of restricted occupations, resulting in serious occupational segregation.
From the point of view of anti employment discrimination, the definition of "criminal record" should be more broad, that is, the fact that the facts are recorded in the case of violation of law and discipline are all the former. The former discrimination should be defined as any unreasonable treatment measures aimed at reducing, restricting or depriving the legal rights of the former citizens. The main component of the state is direct discrimination, which constitutes an unreasonable and differential treatment of the deprivation or restriction of the civil rights of the former criminal. The core of the discrimination in the former section is whether the differential treatment of the former citizens is reasonable.
The current laws and regulations in China constitute a differential treatment for the deprivation or restriction of the qualifications of the former citizens. From the perspective of the retribution and social defense, this limitation is reasonable. However, in essence, this kind of differential treatment is unreasonable. The principle of "proportionality of responsibility"; violating the spirit of Marx's philosophy; violating the right to equal employment; contrary to many modern criminal policies. Using the principle of proportionality in German law as a reference, this differential treatment is also inconsistent with the principle of appropriate sex, the principle of necessity and the principle of legal proportionality. In view of this, our current laws and regulations are The deprivation of employment qualifications of citizens with criminal record constitutes discrimination.
From the angle of constitutionalism, the essence of discrimination in the front is to infringe on the equal right to employment of the former citizens. The key to prohibiting former discrimination is the equality of security forms. The core is to guarantee the equality of the starting point for the former citizens and the guarantee of the substantive equality. The principle of joint prohibition.
Our country should legislate against former discrimination. The main reasons are: the law prohibition of discrimination before the law embodies the justice of law and the principle of humanitarianism; the prohibition of previous discrimination is conducive to the return of the offenders to the society and the social stability; the prohibition of previous discrimination is the need for the development of the market economy; the prohibition of previous discrimination is the respect for and protection of human rights. The need.
We have found that China is one of the countries with stricter restrictions on the qualification of civil servants in the past. In the world, there are few countries that explicitly prohibit discrimination in the law. The legislation of Canada, South Korea and other countries is clearly prohibited. To stop discrimination based on criminal records. There are similar legislation in a few states in the United States. In the judicial practice of the United States, the court takes a standard of reasonableness in hearing the case of prejudice. Therefore, most cases involving restrictions on the qualifications of the former citizens are judged to be constitutionality. The Enlightenment of foreign legislation and practice to China is that we should take tolerance. The principle of limiting the employment qualification of a former citizen is limited to whether it is related to occupation.
Our country should protect the citizens with previous conviction from the three levels of legislation, law enforcement and justice.
In the legislative aspect, first of all, the law should clearly prohibit the former discrimination. In the legislation, we should uphold the principle of balance of interests, balance the social public safety and the personal interests of the former practitioners, balance the equal employment rights of the former practitioners and the employers' autonomy, and adopt the relevant original principles and favorable principles. Secondly, China should gradually abolish or amend our country. The current restrictions or deprivation of the qualifications for employment of a former citizen. The main revision is to limit the employment qualifications of a criminal offender who is incompatible with a profession; a person who is restricted or deprived of the employment qualification should be limited to a citizen with a specific criminal record; the limitation on the offense should be completely excluded; the life-long limitation should be completely abolished. The law of employment qualification should exclude the restrictions on the employment qualification of the expiry of probation, and should exclude the qualifications for the employment of those who have been responsible for the excessive defense or to avoid the risk of being a criminal liability; the qualification limit of the expiry of the probation of the probation of parole should be completely excluded.
The administrative organs should protect the former subjects from discrimination through correct law enforcement. At the same time, our country should form a legal system based on private meaning litigation (including traditional civil litigation and administrative litigation), supplemented by public interest litigation and a constitutional suit in accordance with the national conditions of China, to ensure the fair employment right of the former practitioners.
【学位授予单位】：上海交通大学
【学位级别】：博士
【学位授予年份】：2009
【分类号】：C913.2;D920.4
【引证文献】
相关期刊论文 前1条
1 杨彩云;;社区服刑人员的社会融入与精神健康:基于上海的实证研究[J];华东理工大学学报(社会科学版);2014年04期
相关博士学位论文 前1条
1 左迪;美国联邦法院对反性别就业歧视案件的裁判[D];厦门大学;2014年
相关硕士学位论文 前3条
1 凤午香;前科限制就业研究[D];安徽大学;2011年
2 冯坚;前科消灭制度研究[D];广西师范大学;2012年
3 沈刚;试论我国未成年人犯罪前科消灭制度的构建[D];湖南师范大学;2012年
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