论劳动教养制度的改革

发布时间：2018-05-20 23:14

本文选题：劳动教养 + 改革　；参考：《复旦大学》2011年硕士论文

【摘要】：劳动教养产生于新中国成立初期,是基于当时特定的历史条件而形成的特殊刑事政策。半个多世纪以来,劳动教养在打击和预防违法犯罪、稳定社会秩序方面发挥了重要作用,为我国经济社会的稳定发展做出了重要贡献。但是在新形势下,劳动教养制度自身存在的诸多缺陷已经成为影响劳动教养制度能否成功运行的障碍,其存在的现实合理性也因此而遭到广泛质疑,围绕劳动教养制度是否应当保留的争论至今还如火如荼。在这一背景下,对劳动教养制度展开研究,梳理其产生发展的历史沿革,分析其存在的制度弊端,并为其改革指明方向无疑具有较强的理论意义和实践意义。全文除引言和结语外分为四章：第一章为劳动教养制度的历史发展。这一章梳理了劳动教养制度产生的历史背景及五十多年来的发展变迁历程。也分析劳动教养制度的历史作用。劳动教养经过几十年的实践,为我国社会治安的维护、经济的发展做出了贡献。第二章为有关劳动教养的论争。首先介绍了劳动教养论争产生的历史背景,即劳动教养制度产生当初的社会历史条件已不复存在,原有制度中的诸多规定与法治人权理念格格不入。然后阐述了学术界关于劳动教养论争的主要内容,包括劳动教养性质和劳动教养存废的论争,最后简要介绍了关于劳动教养存废的官方立场。第三章为劳动教养制度的合理性与改革必要性。首先论述了劳动教养的现实合理性。虽然劳动教养制度受到了广泛质疑,但是该制度因能弥补我国刑罚制度的结构性缺陷而具有的现实合理性却毋庸置疑,而且经过五十多年的成功实践,其历史功绩不可抹杀。其次,分析了劳动教养制度存在的以下缺陷：审批机关和审批程序的规定不符合法治原则：适用范围上的缺陷；期限过长；监督制约措施不力。因此,要在现今社会条件下继续发挥劳动教养的制度功能,就必须改革该制度。第四章为劳动教养制度改革的基本思路。文章认为,劳动教养制度必须走司法化改革之路方可克服现存制度缺陷,为此必须在程序上确立公安机关调查权、人民法院审理、人民检察院监督和司法行政机关执行的四位一体的劳动教养运行机制。同时,要缩短劳动教养的期限,使之与行政处罚和刑罚前后衔接,从而在惩罚力度上形成由行政处罚—劳动教养—刑罚构成的制裁体系。最后还应该改革劳动教养适用范围,增强法律制度的操作性并使之符合法制统一原则。
[Abstract]:Reeducation through labor originated in the early days of the founding of New China and was based on the specific historical conditions at that time and formed a special criminal policy. For more than half a century, reeducation through labor has played an important role in cracking down and preventing illegal crimes and stabilizing social order, and has made important contributions to the stable development of our country's economy and society. However, under the new situation, the defects of the re-education through labor system itself have become an obstacle to the successful operation of the re-education through labor system, and the rationality of its existence has been widely questioned. The debate over whether the reeducation through labor system should be retained is still raging. Under this background, it is undoubtedly of great theoretical and practical significance to study the system of re-education through labor, to sort out the historical evolution of its emergence and development, to analyze its existing system malpractices, and to point out the direction for its reform. In addition to the introduction and conclusion, the full text is divided into four chapters: The first chapter is the historical development of reeducation through labor system. This chapter combs the historical background of the reeducation through labor system and the development and vicissitude over the past 50 years. It also analyzes the historical role of the system of reeducation through labor. After decades of practice, reeducation through labor has contributed to the maintenance of social security and economic development. The second chapter is the controversy about reeducation through labor. First of all, it introduces the historical background of the argument of reeducation through labor, that is, the original social and historical conditions of the system of reeducation through labor have ceased to exist, and many provisions of the original system are incompatible with the concept of human rights of rule of law. Then it expounds the main contents of the debate in academic circles, including the nature of re-education through labor and the debate on the retention and abolition of re-education through labor, and finally briefly introduces the official stand on the retention and abolition of re-education through labour. The third chapter is the rationality and reform necessity of reeducation through labor system. First of all, it discusses the realistic rationality of reeducation through labor. Although the system of re-education through labor has been widely questioned, but the system can make up for the structural defects of the penal system of our country, but there is no doubt that the rationality of reality, and after more than 50 years of successful practice, its historical achievements can not be obliterated. Secondly, the author analyzes the following defects in the system of re-education through labor: the provisions of the examination and approval authorities and the examination and approval procedures do not conform to the principle of rule of law: the defects in the scope of application; the time limit is too long; the measures of supervision and restriction are weak. Therefore, in order to continue to play the role of reeducation through labor system under the current social conditions, we must reform the system. The fourth chapter is the basic train of thought of the reform of reeducation through labor system. The article holds that the system of re-education through labor must take the road of judicial reform in order to overcome the defects of the existing system. Therefore, it is necessary to establish the power of investigation of public security organs in the procedure, and the people's court to try it. Supervision by the people's Procuratorate and judicial administrative organs to carry out a four-in-one mechanism of re-education through labor. At the same time, we should shorten the time limit of reeducation through labor, link it with administrative punishment and punishment, and form a sanction system composed of administrative punishment, reeducation through labor and penalty. Finally, we should reform the scope of reeducation through labor, enhance the operation of the legal system and make it conform to the principle of legal unification.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.8

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