论劳动教养制度及其改革

发布时间：2018-01-26 03:09

本文关键词： 劳动教养制度缺陷立法改革　出处：《西南财经大学》2010年硕士论文　论文类型：学位论文

【摘要】：劳动教养法律制度在50多年的风雨历程中,成功地教育和挽救了众多劳动教养人员,在稳定社会秩序、预防和减少犯罪方面发挥了重要的作用。随着时代发展和社会进步,其存在的问题和弊端逐渐显露出来,已不能适应当今法治建设的需要。近年来,社会各界对劳动教养制度如何改革提出了许多方案,大体上可分为“废除论”和“保留论”两派。本文主张通过立法的形式,对劳动教养制度加以改革,在保留劳动教养功能的基础上加以完善,以满足当前社会需要。主要内容包括：一、劳动教养制度的法制历程及其作用。劳动教养是在特殊历史时期下建立的一项法律制度,以1957年国务院公布《关于劳动教养问题的决定》为标志正式创建。在经历初期的发展阶段之后,劳动教养在文化大革命时期基本处于停顿状态。1982年,国务院转发了公安部的《劳动教养试行办法》,从此,劳动教养制度开始走上了正常的发展道路。经过多年的变革,现行的劳动教养制度同创建时期有了很多不同。但就其作用而言,无论在哪个阶段,劳动教养制度均发挥了重大的社会作用和价值。二、劳动教养制度的缺陷。法律性质不明确、未建立科学的法律体系是其主要缺陷。此外,审批程序不正当、监督机制缺乏、救济渠道不畅通、罚过其责等也是争议比较大的问题。三、劳动教养的存废之争。关于我国劳动教养制度的存与废之争,笔者主张应抛开字面之争,从实质意义上思考如何改革劳动教养制度,才能使其符合我们当前法制社会的要求。应在保留劳动教养社会功能的基础上,加以改革和完善,使劳动教养制度更加符合现代社会发展的实际需要,更加体现对公民权利的保障和对社会利益的平衡,发挥更大的社会作用。四、劳动教养制度的出路。笔者主张建立起独立于行政处罚和刑事处罚之外的法律处分,并引入正当的司法程序,将劳动教养的决定权交由法院行使,做到决定程序司法化、执行管理依据法律化,这是健全和完善劳动教养制度的现实需要,也是实现依法治国的需要。针对劳动教养制度的改革和完善,本文也提出了具体的对策建议：首先要明确其法律性质为一种强制性教育措施。其次,关于劳动教养立法的名称,本文赞成以违法行为矫治法代替劳动教养法。不仅使法律名称更为科学,而且可以体现其丰富内涵。在具体制度建构时,着重解决适用对象和范围、期限、提请和审批程序、法律监督和法律救济等方面的问题。总之,本文试图通过深入探讨和研究,使劳动教养制度更加符合现代社会经济、政治、文化和社会发展的实际需要,在新的历史时期发挥新的更大的预防和控制违法犯罪的作用。
[Abstract]:The legal system of reeducation through labor has successfully educated and saved a large number of reeducation through labor personnel in the course of more than 50 years of wind and rain, and has been stabilizing the social order. Prevention and reduction of crime has played an important role. With the development of the times and social progress, its existing problems and drawbacks are gradually revealed, and can not meet the needs of the construction of the rule of law. The society has put forward many plans on how to reform the system of re-education through labor, which can be divided into two schools: abolition theory and reservation theory. This paper advocates the reform of the system of re-education through labor by way of legislation. On the basis of preserving the function of reeducation through labour, it should be perfected to meet the needs of the present society. The main contents include: First, the legal course and function of the system of re-education through labor, which is a legal system established under the special historical period. In 1957, the State Council announced the decision on the issue of re-education through labor as the symbol of formal establishment. After the initial stage of development. In 1982, the State Council forwarded the trial measures of the Ministry of Public Security to re-education through labor, and from then on. After many years of reform, the current re-education through labor system and its founding period has a lot of differences. But in terms of its role, no matter in any stage. The system of reeducation through labor has played an important social role and value. Second, the defects of the re-education through labor system. The legal nature is not clear, not establishing a scientific legal system is its main defect. In addition, the examination and approval process is improper, the supervision mechanism is lacking, and the relief channels are not smooth. Punishment and other responsibilities are more controversial issues. Third, the struggle between the existence and abolition of the re-education through labour system in our country, the author advocates that we should put aside the literal argument, and think about how to reform the system of re-education through labor in essence. In order to make it meet the requirements of our current legal society, we should reform and perfect it on the basis of retaining the function of reeducation through labor society, and make the system of reeducation through labor more in line with the actual needs of the development of modern society. More embodies the protection of civil rights and the balance of social interests, play a greater social role. Fourth, the way out of the system of re-education through labor. The author advocates the establishment of legal sanctions independent of administrative punishment and criminal punishment, and the introduction of due judicial procedures, the decision to transfer the right to re-education through labour to be exercised by the court. It is the realistic need to perfect and perfect the system of reeducation through labor and to realize the rule of law. In view of the reform and perfection of the re-education through labor system, this paper also puts forward specific countermeasures and suggestions: first, it should be clear that its legal nature is a kind of compulsory education measure; secondly, the name of the legislation on reeducation through labor. This article is in favour of replacing the law of re-education through labor with the law of correction of illegal acts. It not only makes the name of the law more scientific, but also embodies its rich connotation. In the construction of specific system, it focuses on solving the object and scope of application and the time limit. Request and approval procedures, legal supervision and legal remedies and other issues. In a word, this paper tries to make the system of re-education through labor more in line with the actual needs of modern social economic, political, cultural and social development through in-depth exploration and research. In the new historical period, play a new and greater role in the prevention and control of crime.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D926.8

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