创新劳动教养制度的立法构想

发布时间：2018-02-12 12:34

本文关键词： 劳动教养立法强制教育矫治　出处：《郑州大学》2005年硕士论文　论文类型：学位论文

【摘要】：劳动教养法律制度在近50年的风雨历程中,成功地教育挽救了380多万劳动教养人员,在维护社会治安、预防和减少违法犯罪方面发挥了重要的作用。但是应该看到,劳动教养的立法思想以义务本位观为重,政治色彩浓厚,法制根基不足;与《立法法》、《行政处罚法》“限制人身自由的处罚只能由法律设定”的规定相抵触;与国际公约脱轨甚至冲突,与我国承担的国际义务相背;劳动教养的调整对象缺乏定性和定量因素的统一,违背了处分法定原则,处罚的轻重与适用行为的实际危害程度不相适应,违背“过罚相当”原则;劳动教养在程序上缺乏正当性基础,对限制人身自由的处罚由行政机关来做出,超出了行政权对公民权利的处置权限,劳动教养的决定过程剥夺了被劳动教养者参与的机会,而且还缺乏完善的救济机制和应有的监督制约机制;此外,劳动教养的执行与刑罚的执行没有形成实质性的差别,与保障劳动教养人员合法权利、促进劳动教养人员回归社会的客观需要是不相符合的。劳动教养制度上的缺陷运作上的弊端使其存在的合法性与合理性受到质疑,有相当一部分专家学者主张废除劳动教养制度。笔者认为,我国目前还需要一种在剥夺或限制公民自由的严厉程度方面与现行劳动教养类似的,又相对独立于治安管理处罚和刑事制裁的法律措施,但是在认定、执行、管理等方面的主要依据都必须按照我国《立法法》的要求法律化,决定程序司法化,尽快改变我国劳动教养制度目前实际上是一个行政部门根据自己制定的规章,不经司法程序就可以自行决定长时期限制(剥夺)公民人身自由的状况。笔者立足中国国情的现实,分析了劳动教养立法是实现依法治国的需要,是适应国际法制文明发展趋势的需要,阐明了对现行劳动教养制度进行改革,尽快制定一部统一、系统和完备的劳动教养法典已迫在眉睫。本文还从理论基础、社会基础、实践基础三个方面论证了劳动教养立法的可行性。必须对劳动教养制度进行重新构建,这在理论界和实践部门已经取得共识。劳动教养制度应该如何构建,人们见仁见智、分歧较大。目前法学界和司法界提出了几种创新劳动教养制度的立法方案,有的主张劳动教养采用行政模式,将劳动教养纳入行政制裁体系中,由行政机关决定劳动教养的适用。有的看到了劳动教养与保安处分的相似性,主张建立中国的保安处分体系。有的主张通过刑事立法使劳动教养轻罪化,实现其法律化、司法化和程序化。有的主张劳动教养作为一种独立的刑罚种类纳入刑罚体系,使之刑罚化,并且将其适用过程司法化。笔
[Abstract]:In the past 50 years, the legal system of reeducation through labor has successfully saved more than 3.8 million reeducation through labor personnel, which has played an important role in maintaining public order and preventing and reducing illegal and criminal activities. The legislative thought of reeducation through labor is based on the view of obligation, with strong political color and insufficient legal foundation, which conflicts with the stipulation that "the punishment of restricting personal freedom can only be set by the law" in the Legislative Law and the Administrative punishment Law; Contrary to the international obligations assumed by our country, the adjustment object of reeducation through labor lacks the unity of qualitative and quantitative factors and violates the principle of punishment. The severity of punishment is not commensurate with the actual degree of harm of the applicable act and violates the principle of "excessive punishment is equal"; the procedural basis of reeducation through labour is not justified, and the punishment for restricting personal freedom is imposed by the administrative organ. Beyond the administrative power's authority to dispose of citizens' rights, the decision-making process of re-education through labour deprives the persons under re-education through labour of the opportunity to participate, and lacks a perfect relief mechanism and a proper mechanism of supervision and restriction; in addition, There is no substantial difference between the execution of re-education through labour and the execution of punishment, and the protection of the lawful rights of the personnel undergoing re-education through labour, The objective need to promote the return of reeducation through labor is not in line with the objective need. The defects in the system of reeducation through labor make its legitimacy and reasonableness questionable. Quite a number of experts and scholars advocate the abolition of the system of re-education through labour. The author believes that China still needs something similar to the existing system of reeducation through labour in terms of the severity of deprivation or restriction of civil liberties. They are also relatively independent of the legal measures of public security management, punishment and criminal sanctions, but the main bases for the determination, execution, management, and so on must be legalized in accordance with the requirements of the "Legislative Law" of our country, and the judicial procedure must be decided. To change our reeducation through labour system as soon as possible is in fact an administrative department according to its own rules and regulations. The author, based on the reality of China's national conditions, analyzes that the legislation of reeducation through labor is the need to realize the rule of law. It is necessary to adapt to the development trend of international legal civilization, expound the reform of the current reeducation through labor system, and make a unified, systematic and complete code of reeducation through labor as soon as possible. The feasibility of the legislation of reeducation through labor is demonstrated in three aspects. We must rebuild the system of re-education through labor, which has already reached a consensus in the theoretical and practical fields. People have different opinions on how to construct the system of re-education through labor. At present, the legal and judicial circles have put forward several legislative plans for innovating the system of re-education through labour. Some of them advocate the adoption of administrative mode of re-education through labour and bring it into the system of administrative sanctions. It is up to the administrative organs to decide on the application of re-education through labour. Some see the similarities between reeducation through labour and security measures, and some advocate the establishment of a system of security measures in China. Others advocate the legalization of misdemeanours through criminal legislation. Some people advocate that reeducation through labor as an independent type of penalty should be brought into the penalty system, and its application process should be judicialized.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D926.8

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