农民工法律援助权的渐进性建构
发布时间：2018-08-21 14:42
【摘要】：法律的生命力根源于其内蕴的人文关怀。法律援助中体现出的保护弱势群体的人本主义思想与现时代凸显的农民工问题相结合,由此引发了我研究农民工法律援助的热忱。中国当前农民工问题的难关,很大程度上不是告诉广大农民工怎样办,而是要解决政府和社会该如何办的问题。基于此理念的指引,本文提出了农民工法律援助权的命题,将农民工获得法律援助视为其应有的一种权利,思考的进路围绕如何建构与完善这一权利来进行。 本文分三章进行架构。第一章主要解读农民工法律援助权的基本理念,通过探究法律援助制度的价值内涵,剖析农民工法律援助权的构成特点,对农民工法律援助权与相关权能进行辨析,为农民工法律援助权的研究奠定基础,为更好地建构农民工法律援助权梳理思路。农民工法律援助权是指农民工在需要的情况下,有获得法律援助的权利。法律援助从制度设计之初就奠定了扶助社会中弱者的目标指向,而农民工在现阶段的社会转型期无疑是社会中最大的弱势群体,法律援助制度所蕴含的平等正义的人权理念即为农民工法律援助权提供了理论基础。法律援助成为维护农民工合法权益的有力支撑。 第二章对农民工法律援助权的确立缘由进行分析,通过考量法律援助对农民工的作用,透析现阶段农民工法律援助的瓶颈,从而为农民工法律援助权的确立提供价值依据。农民工应有而实际未享有的权利有很多,劳动权利、政治权利、社会保障权利以及为了保障这些实体性权利而设立的诉权等等,在现实生活中无不程度深浅地遭遇到实现障碍。与此同时,农民工法律援助工作也碰到了许多的困难,遇到了发展的瓶颈。如何突破瓶颈,使农民工切实享有法律规定其应该享有的各项权利,顺利实现困境突围,农民工法律援助权的建构为之找到了方向。确立农民工法律援助权是必要的,也是强烈体现时代感的,具有十分重要的理论与现实意义。 第三章对农民工法律援助权的实现进行探讨。农民工法律援助权的实现过程即是农民工法律援助制度的逐步完善过程。本章着重以农民工法律援助的制度演进为研究主题。首先从制度的理性进路入手,提升农民工法律援助的权利理念,提出了从单一型到综合型的制度丰富方向和从激进型到渐进型的观念转变方向,为农民工法律援助制度的建构确立理论基础与价值方向。然后从立法层面对农民工法律援助制度提出要求,明确提供法律援助是国家责任,要在立法确立农民工法律援助权的基础上,对现行涉及农民工法律援助的法律法规进行完善。最后对农民工法律援助制度的运行体系做了尝试性建构,提出应从机构模式、程序设置、方法途径、监督机制、质量保证等方面入手,为农民工法律援助制度提供强有力支撑,确保其获得实效,以助农民工法律援助权的实现。
[Abstract]:The vitality of law is rooted in its humanistic concern. The humanism thought of protecting the vulnerable groups reflected in the legal aid combined with the problem of migrant workers which is prominent in the present era, which triggered my enthusiasm to study the legal aid of migrant workers. The problem of migrant workers in China is to a large extent not to tell the majority of migrant workers how to do, but to solve the problem of how the government and society should do. Based on the guidance of this concept, this paper puts forward the proposition of the right of legal aid for migrant workers, regards the right of obtaining legal aid for migrant workers as their due right, and thinks about how to construct and perfect this right. This paper is divided into three chapters. The first chapter mainly interprets the basic idea of the legal aid right of migrant workers, analyzes the composing characteristics of the legal aid right of migrant workers by exploring the value connotation of the legal aid system, and discriminates the legal aid right of migrant workers and the relevant power. It lays a foundation for the research of migrant workers' right of legal aid, and combs the train of thought for better construction of migrant workers' right of legal aid. The right of legal aid for migrant workers refers to the right of obtaining legal aid if they need it. Since the beginning of the system design, legal aid has laid the goal of helping the weak in the society, and migrant workers are undoubtedly the largest vulnerable groups in the society in the current social transition period. The concept of equal and just human rights contained in the legal aid system provides a theoretical basis for the legal aid rights of migrant workers. Legal aid has become a strong support for protecting the legitimate rights and interests of migrant workers. The second chapter analyzes the reasons for the establishment of the right to legal aid for migrant workers, through the consideration of the role of legal aid to migrant workers, analyze the bottleneck of the legal aid of migrant workers at this stage, so as to provide a value basis for the establishment of the right to legal aid for migrant workers. There are many rights that migrant workers should not actually enjoy, such as labor rights, political rights, social security rights and the right of action set up in order to protect these substantive rights, and so on, all of which have encountered obstacles to realization to a great extent in real life. At the same time, migrant workers legal aid also encountered a lot of difficulties, encountered the bottleneck of development. How to break through the bottleneck, make the peasant workers enjoy the rights that the law should enjoy, and smoothly realize the predicament break through, the construction of the right of legal aid for migrant workers to find a direction for it. It is necessary to establish the right of legal aid for migrant workers, and it is also a strong embodiment of the sense of the times, which has very important theoretical and practical significance. The third chapter discusses the realization of migrant workers' right of legal aid. The process of realizing the right of legal aid for migrant workers is the gradual improvement of the legal aid system of migrant workers. This chapter focuses on the evolution of migrant workers legal aid system as the research theme. First of all, starting with the rational approach of the system, it promotes the right concept of legal aid for migrant workers, and puts forward the rich direction of the system from the single type to the comprehensive type and the transformation direction from the radical type to the progressive type. To establish the theoretical basis and value direction for the construction of the legal aid system for migrant workers. Then the legal aid system of migrant workers is required from the legislative level, it is the responsibility of the state to provide legal aid, on the basis of legislation to establish the right to legal aid of migrant workers, the existing laws and regulations involving legal aid of migrant workers should be improved. Finally, the author tries to construct the operating system of the legal aid system for migrant workers, and puts forward that it should start from the aspects of institutional model, procedure setting, method and approach, supervision mechanism, quality assurance, and so on, in order to provide a strong support for the legal aid system of migrant workers. To ensure its effectiveness, in order to help migrant workers to achieve the right to legal aid.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.5
本文编号：2196066
[Abstract]:The vitality of law is rooted in its humanistic concern. The humanism thought of protecting the vulnerable groups reflected in the legal aid combined with the problem of migrant workers which is prominent in the present era, which triggered my enthusiasm to study the legal aid of migrant workers. The problem of migrant workers in China is to a large extent not to tell the majority of migrant workers how to do, but to solve the problem of how the government and society should do. Based on the guidance of this concept, this paper puts forward the proposition of the right of legal aid for migrant workers, regards the right of obtaining legal aid for migrant workers as their due right, and thinks about how to construct and perfect this right. This paper is divided into three chapters. The first chapter mainly interprets the basic idea of the legal aid right of migrant workers, analyzes the composing characteristics of the legal aid right of migrant workers by exploring the value connotation of the legal aid system, and discriminates the legal aid right of migrant workers and the relevant power. It lays a foundation for the research of migrant workers' right of legal aid, and combs the train of thought for better construction of migrant workers' right of legal aid. The right of legal aid for migrant workers refers to the right of obtaining legal aid if they need it. Since the beginning of the system design, legal aid has laid the goal of helping the weak in the society, and migrant workers are undoubtedly the largest vulnerable groups in the society in the current social transition period. The concept of equal and just human rights contained in the legal aid system provides a theoretical basis for the legal aid rights of migrant workers. Legal aid has become a strong support for protecting the legitimate rights and interests of migrant workers. The second chapter analyzes the reasons for the establishment of the right to legal aid for migrant workers, through the consideration of the role of legal aid to migrant workers, analyze the bottleneck of the legal aid of migrant workers at this stage, so as to provide a value basis for the establishment of the right to legal aid for migrant workers. There are many rights that migrant workers should not actually enjoy, such as labor rights, political rights, social security rights and the right of action set up in order to protect these substantive rights, and so on, all of which have encountered obstacles to realization to a great extent in real life. At the same time, migrant workers legal aid also encountered a lot of difficulties, encountered the bottleneck of development. How to break through the bottleneck, make the peasant workers enjoy the rights that the law should enjoy, and smoothly realize the predicament break through, the construction of the right of legal aid for migrant workers to find a direction for it. It is necessary to establish the right of legal aid for migrant workers, and it is also a strong embodiment of the sense of the times, which has very important theoretical and practical significance. The third chapter discusses the realization of migrant workers' right of legal aid. The process of realizing the right of legal aid for migrant workers is the gradual improvement of the legal aid system of migrant workers. This chapter focuses on the evolution of migrant workers legal aid system as the research theme. First of all, starting with the rational approach of the system, it promotes the right concept of legal aid for migrant workers, and puts forward the rich direction of the system from the single type to the comprehensive type and the transformation direction from the radical type to the progressive type. To establish the theoretical basis and value direction for the construction of the legal aid system for migrant workers. Then the legal aid system of migrant workers is required from the legislative level, it is the responsibility of the state to provide legal aid, on the basis of legislation to establish the right to legal aid of migrant workers, the existing laws and regulations involving legal aid of migrant workers should be improved. Finally, the author tries to construct the operating system of the legal aid system for migrant workers, and puts forward that it should start from the aspects of institutional model, procedure setting, method and approach, supervision mechanism, quality assurance, and so on, in order to provide a strong support for the legal aid system of migrant workers. To ensure its effectiveness, in order to help migrant workers to achieve the right to legal aid.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.5
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