拒不支付劳动报酬罪的行为构成研究

发布时间：2018-06-12 00:47

本文选题：行为构成 + 劳动法益　；参考：《湘潭大学》2017年硕士论文

【摘要】：劳动是人类最普遍的社会活动,劳动报酬的获取关系着劳动者的生存和发展。随着市场经济的发展,新的道德体系面临重构之前,依靠此前的道德体系支撑的经济关系失去了规范,劳资关系作为市场经济关系中重要的一环,屡陷困境。恶性欠薪事件频发引发了全社会对欠薪问题的关注,雇主拒不付薪行为,不但会使劳动者生活陷入困境,同时也阻碍了我国经济秩序的稳定与和谐发展。为了遏制恶意欠薪行为,2011年施行的《刑法修正案(八)》正式在我国刑法领域规制严重的拒付薪酬行为。该法实施以来,虽在理论指导实践上给予了处于弱势地位的劳动者一定的保护,但是,本罪实施6年以来,在司法实务处理中,对拒付薪酬的行为是否入罪的判定仍存有不同的观点。因此,有必要对实施本罪的行为构成作进一步的分析和探讨,以便运用好本罪,让本罪能发挥出它最大的效应。拒不支付劳动报酬罪的行为主体违反刑法的命令规范,不为刑法所要求或期待的行为,是典型的纯正不作为犯。根据不作为犯罪的构成要素,对本罪的行为构成研究主要从犯罪主体有支付劳动报酬的义务、具有支付劳动报酬的能力而不履行支付劳动报酬的义务的角度进行构思:首先,阐述本罪行为的含义及构成要素;其次,明确支付劳动报酬的义务来源及劳动报酬的范围;再次,从有利于实操的角度对行为主体有支付劳动报酬的能力进行实质判断及具有支付能力的时间进行界定;最后,对具有履行支付劳动报酬的义务而不履行的行为从时间和程序上进行分析与界定。通过对该罪行为构成的分析,提高在实践中对该罪行为的认识,以期达到在众多不支付劳动报酬的行为中准确判断哪些属于刑法所规制的目的。
[Abstract]:Labor is the most common social activity of human being. The obtaining of labor reward is related to the survival and development of laborer. With the development of market economy, the economic relationship supported by the previous moral system has lost its standard before the new moral system is faced with reconstruction. As an important part of the market economy relationship, labor relations have repeatedly fallen into difficulties. The frequent occurrence of vicious incidents of unpaid wages has caused the whole society to pay attention to the problem of unpaid wages. The refusal of employers to pay wages will not only lead workers into difficulties in their lives, but also hinder the stability and harmonious development of economic order in our country. In order to curb the maliciously unpaid wages, the Criminal Law Amendment (8), which was carried out in 2011, formally regulated the serious refusal to pay in the criminal law field of our country. Since the implementation of the law, although it has given certain protection to workers in a weak position in theory and practice, it has been dealt with in judicial practice since the implementation of this crime six years ago. There are still different views on whether the refusal to pay is an offence. Therefore, it is necessary to make further analysis and discussion on the composition of the behavior of the crime, so as to make good use of the crime and make this crime exert its maximum effect. It is a typical pure omission that the subject of the crime of refusing to pay labor remuneration violates the order norm of the criminal law and is not required or expected by the criminal law. According to the constituent elements of the crime of omission, the research on the behavior constitution of this crime is mainly from the angle that the subject of the crime has the obligation to pay the remuneration for labor, and has the ability to pay the remuneration of labor, but not to fulfill the obligation of paying the remuneration of the work: first of all, Explain the meaning of the crime and its constituent elements; secondly, clear the source of the obligation to pay the remuneration for labor and the scope of the remuneration; again, From the point of view of actual operation, the author makes a substantial judgment on the ability of the behavior subject to pay the labor reward and defines the time of the ability to pay; finally, This paper analyzes and defines the time and procedure of failure to fulfill the obligation to pay for labor. Through the analysis of the constitution of the crime, the author raises the understanding of the crime in practice, in order to accurately judge which is regulated by the criminal law among the many behaviors which do not pay the labor reward.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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