劳动教养制度的现状与展望

发布时间：2018-02-27 21:14

本文关键词： 劳动教养现状展望　出处：《郑州大学》2005年硕士论文　论文类型：学位论文

【摘要】：劳动教养是我国独有的一项法律制度,它植根于我国五十年代“肃反”和“反右”运动这一特殊的社会土壤,并在近五十年的社会巨变中不断发展和变化。根据1957年全国人大常委会批准公布的《国务院关于劳动教养的决定》和1982年国务院批准的公安部《劳动教养试行办法》的规定,劳动教养是指国家依法对具有违法犯罪行为,不够或不给予刑罚处罚而又符合劳动教养条件的人所采取的一种强制性教育改造行政措施。时至今日,劳动教养已从创建初期兼有安置就业性质的强制性教育改造措施,演变为行政处罚。在宪政和法治观念日益深入人心的今天,劳动教养制度存在的缺陷和不足也日益明显。反思现行劳动教养制度存在的问题,对于劳动教养这项法律制度的健康发展,意义重大。本文共分四个部分。第一部分介绍了劳动教养制度的基本内容,第二部分分析了劳动教养制度存在的问题与不足,第三部分对国外的相关制度进行比较,第四部分从实践上进一步探讨如何改革与完善我国的劳动教养制度,本文的重点内容在二、三、四部分,并从一个普通警察的视角对于警察权力的制约与劳动教养的改革提出自己的观点。比如对于大多数学者认为的应当通过司法程序来决定劳动教养的观点,笔者有不同的看法,纳入司法程序在理论上固然可行,但实践中会因为司法成本太高反而不利于救济,况且存在由警察权的滥用转为司法权的滥用的可能,这从目前我国法院的司法现状及平民诉讼的难度可见一斑;又比如对于部分学者认为劳动教养缺乏救济的渠道,被劳动教养人员的权利得不到有效的保障的观点,笔者认为有失偏颇。因为劳动教养不乏救济渠道,只是制度设计上的缺陷间接导致了救济的不力。且不论公安机关内部对于办理劳动教养案件的聆询、复核、错案责任追究等内部监督机制,对于被劳动教养人员的司法救济尚有《行政复议法》、《行政诉讼法》、《国家赔偿法》等法律做出了相应的规定。
[Abstract]:Reeducation through labor is a unique legal system in our country. It is rooted in the special social soil of "eliminating the opposition" and "opposing the right" movement in 50s in our country, and has been developing and changing constantly in the great changes of the society in the past 50 years. According to the provisions of the "decision of the State Council on Reeducation through Labor", approved and promulgated by the standing Committee of the National people's Congress on 1957, and the "measures of the Ministry of Public Security" of the Ministry of Public Security approved by the State Council on 1982, reeducation through labour means that the state has committed illegal and criminal acts in accordance. A compulsory educational reform administrative measure taken by persons who do not give punishment or punishment and who meet the conditions of reeducation through labor. Today, reeducation through labor has evolved from a compulsory educational reform measure with the nature of placement and employment in the initial period to administrative punishment. Today, the concept of constitutionalism and the rule of law has become increasingly popular. It is of great significance to reflect on the problems existing in the current re-education through labor system for the healthy development of the legal system of re-education through labor. This paper is divided into four parts. The first part introduces the basic contents of the re-education through labor system, the second part analyzes the problems and shortcomings of the re-education through labor system, the third part compares the relevant systems abroad. The 4th part further discusses how to reform and perfect our country's reeducation through labor system in practice. The main content of this paper is in the second, third and fourth parts. And from the perspective of an ordinary police officer, I put forward my own views on the restriction of police power and the reform of re-education through labor. For example, I have different views on the view that most scholars believe that reeducation through labor should be decided through judicial procedures. It is feasible in theory to bring into judicial procedure, but in practice it will be disadvantageous to remedy because the judicial cost is too high. Moreover, there is the possibility that the abuse of police power can be changed into the abuse of judicial power. This can be seen from the current judicial situation in our country's courts and the difficulty of civilian litigation. Another example is the view of some scholars that there is a lack of relief channels for reeducation through labour, and that the rights of persons under re-education through labour cannot be effectively protected. The author thinks that there is a bias, because there are no lack of relief channels in the re-education through labor system, but the defects in the design of the system indirectly lead to the failure of the relief. Regardless of the public security organs' internal hearing and review of the cases of reeducation through labour, The internal supervision mechanism, such as the investigation of the responsibility for wrong cases, has made corresponding provisions for the judicial relief of the reeducation through labor personnel, such as the Administrative Review Law, the Administrative procedure Law, the State compensation Law, and so on.
【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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