劳动教养制度若干问题立法研究

发布时间：2018-01-29 16:42

本文关键词： 劳动教养改革立法完善　出处：《厦门大学》2001年硕士论文　论文类型：学位论文

【摘要】： 劳动教养制度是我国一项重要的法律制度，但在推进依法治国的进程中，，其缺陷日益凸现出来，特别是在我国新《刑法》、《刑事诉讼法》及《行政处罚法》、《立法法》相继颁布实施后，劳动教养制度的合理性、合法性受到质疑，其存废问题也引起了热烈讨论。本文试图对劳动教养的性质及适用条件等重大问题进行研究探讨，在此基础上对劳动教养的改革与完善问题提出立法构想。本文除引言和结语外，共分六章：第一章劳动教养制度概述。主要考证了劳动教养的产生、形成及发展的历史，考察了前苏联和美国的劳动教养制度，介绍了我国劳动教养制度的基本情况，并对中外劳动教养制度进行比较分析。第二章我国劳动教养制度的缺陷与发展走向。主要分析了我国现行劳动教养制度存在的问题、劳动教养制度存在的原因，认为劳动教养制度改革的方向是改变其性质，将其刑事立法化、司法化，使之成为刑法上保安处分的种类，并进一步论述了劳动教养制度改革的必要性。第三章劳动教养的定性定位问题。主要对劳动教养的性质及理论界的争论进行评析，把我国劳动教养制度与国外保安处分进行分析对比，对劳动教养性质及价值取向进行界定，认为劳动教养是—种保安性措施，其功能定位在保护社会、防止犯罪危险性，是刑法的补充。第四章劳动教养适用条件。主要对劳动教养的适用对象、适用范围和责任条件进行考察和评析，在立法上如何完善问题提出建议。第五章劳动教养审批决定权行使与制约。主要分析了劳动教养审批程序上之不足，对有关专家学者提出的审批决定权的分配方案进行评析，确定立法上可行性的选择。第六章劳动教养立法的构建思路。在对劳动教养的定性定位的基础上，论述了劳动教养立法的宪法依据，立法模式的选择，法律名称的确定，及立法中必须重点解决的问题。
[Abstract]:The system of re-education through labor is an important legal system in our country, but in the process of promoting the rule of law, its defects are increasingly obvious, especially in the new Criminal Law, the Criminal procedure Law and the Administrative punishment Law. After the enactment and implementation of the "Legislative Law" one after another, the rationality and legality of the system of re-education through labour has been questioned. This paper attempts to study the nature and applicable conditions of reeducation through labor and puts forward a legislative conception on the reform and perfection of reeducation through labor. In addition to the introduction and conclusion, this article is divided into six chapters: The first chapter is an overview of the system of re-education through labor. It mainly examines the history of the emergence, formation and development of reeducation through labour, and examines the former Soviet Union and the United States of America's system of re-education through labour. This paper introduces the basic situation of the system of reeducation through labor in China and makes a comparative analysis of the system of reeducation through labor at home and abroad. The second chapter is the defect and development trend of our country's re-education through labor system. It mainly analyzes the existing problems of our country's current system of re-education through labor and the reasons for the existence of the system of re-education through labor. The author thinks that the direction of reform of reeducation through labor system is to change its nature, to legislate its criminal law and to make it a kind of security measure in criminal law, and further discusses the necessity of reforming the system of reeducation through labor. The third chapter is the qualitative orientation of reeducation through labor. It mainly analyzes the nature of reeducation through labor and the controversy in the theoretical circle, and analyzes and compares the system of reeducation through labor in our country with foreign security measures. This paper defines the nature and value orientation of reeducation through labor and holds that reeducation through labor is a kind of security measure whose function is to protect society and prevent the danger of crime and is a supplement to the criminal law. Chapter 4th is about the applicable conditions of reeducation through labor. It mainly investigates and evaluates the applicable object, applicable scope and responsibility conditions of reeducation through labor, and puts forward some suggestions on how to perfect the legislation. Chapter 5th: exercise and restriction of the decision on the examination and approval of re-education through labor. This paper mainly analyzes the shortcomings of the approval procedure of re-education through labour, and evaluates the distribution scheme of the decision of approval proposed by the experts and scholars concerned. To determine the legislative feasibility of the choice. On the basis of the qualitative orientation of reeducation through labor, this paper discusses the constitutional basis, the choice of legislative model and the determination of legal name of the legislation of re-education through labor. And the problems that must be solved in legislation.
【学位授予单位】：厦门大学
【学位级别】：硕士
【学位授予年份】：2001
【分类号】：D926.8

【引证文献】