试论进一步完善我国劳动教养制度

发布时间：2018-06-06 21:05

本文选题：试论 + 进一步　；参考：《华东政法学院》2002年硕士论文

【摘要】：劳动教养制度是我国一项具有中国特色的社会主义法律制度。我国的劳动教养制度是在20世纪50年代中期的较为特殊的历史条件下创建起来的,它的建立对于巩固我国人民民主专政的国家政权,保障社会主义建设的顺利进行,维护社会治安秩序,解决社会失业问题,改造反革命分子和坏分子化消极因素为积极因素都具有特殊的意义。我国劳动教养的发展历程可以分为几个阶段,其性质从创办、发展到现阶段也随之发生了很大的变化。在劳动教养建立之初,劳动教养是对被劳动教养安置就业的一种办法。在80年代初之前劳动教养的性质又被确定为“是对被劳动教养的人实行强制性教育改造的行政措施,是处理人民内部矛盾的一种方法。” 从80年代起,劳动教养的性质逐步成为一种行政制裁措施。至90年代初期,我国重申了劳动教养是一种教育改造措施,又首次确认了劳动教养也是一种行政处罚措施。根据劳动教养法律、法规和有关法律的规定以及劳动教养的实践,现行劳动教养适用程序是一种行政法律程序,而非诉讼程序,其行政特色和劳动教养特色比较鲜明。根据《劳动教养试行办法》的有关规定以及各地方的制定细则,劳动教养适 WP=3 用程序主要包括立案侦查、审核、审批和复议等几个阶段。我国的劳动教养制度与短期自由刑和治安行政措施中的收容教育、收容遣送、治安拘留虽存在相似之处,但在法律依据、适用对象、性质、执行等诸多方面仍有着一定的不同。同时,我国的劳动教养制度与国外的保安处分在性质、适用效力、决定权等方面也存在着不同之处。劳动教养,是我国社会主义革命和建设中的一大创举,是一项具有中国特色的教育、挽救、感化违法和轻微犯罪行为人的社会主义法律制度。劳动教养的创建和发展不仅教育改造了人,而且完善了我国的法制体系。从劳动教养实施的历程和现状看,这一制度的存在有其必然性和合理性。如在对那些不够刑事处罚,但以治安处罚条例又不足以防止其社会危害性的人进行处罚的适用方面。劳动教养制度适应了建国以来我国社会、经济和法制发展的水平,也满足了司法实践中的需求。实践证明,劳动教养在维护社会稳定中所起到的作用是其它法律手段难于取代的。但是,从依法治国的法制原则来看,这一制度又存在严重的缺陷,随着社会主义民主与法制的健全,劳动教养制度存在的合法性以及合理性越来越受到质疑。劳动教养制度存在的缺陷是多方面的,如劳动教养制度的法律、法规依据不健全、不统一,劳动教养的地位不明确,劳动教养的性质不明确。又如,在劳动教养实体规定方面存在的处罚强度缺乏适当性,地域适用效力不符合现状,对象的的范围过于狭窄,量罚标准不够完善等诸多不合理性。再如,劳动教养在程序设置上存在的不正当性以及劳动教养机构设置的不合理性等等。针对劳动教养存在的各种弊端和缺陷,必须进一步完善我国劳动教养的各项制度。首先,应当将劳动教养予以立法,从而进一步在理论和法律依据上明确劳动教养的地位和性质。其次,要进一步确定劳动教养的对象和范围,要将劳动教养与刑 WP=4 事处罚和治安处罚的对象加以及明确区分。还有,要尽快完善劳动教养程序方面的各项规定。取消早已名存实亡的劳动教养管理委员会,明确公安机关为劳动教养的审批部门,缩短劳动教养的期限,体现劳动教养轻于刑事处罚但重于治安行政处罚的特点。同时,总结目前劳教管理的成功经验,建立与劳动教养相一致的管理制度,保障劳教人员的合法权益,使劳教与刑事处罚显著区分开来。
[Abstract]:The system of reeducation through labor is a socialist legal system with Chinese characteristics. The system of reeducation through labor in China has been established under the special historical conditions in the middle of the 1950s. It is established for the state power of consolidating the democratic dictatorship of our country, ensuring the smooth progress of the socialist construction and maintaining the society. Public order, solving social unemployment, reforming counter revolutionaries and bad elements of negative factors are of special significance for positive factors.
The course of the development of reeducation through labor in China can be divided into several stages, and its nature has also changed greatly from the establishment, development to the present stage. At the beginning of the establishment of the reeducation through labor, the reeducation through labor is a means of resettlement and employment by labor. The nature of the labor education before the beginning of the 80s is determined as "to be reeducation by labor." The administrative measures for compulsory education reform are the way to deal with the contradictions among the people. "Since 80s, the nature of the reeducation through labor has gradually become an administrative sanction. In the early 90s, our country reaffirmed that the reeducation through labor was an educational reform measure, and the first time that the reeducation through labor was also an administrative penalty measure." Shi.
According to the law of reeducation through labor, regulations and relevant laws and the practice of reeducation through labor, the current application procedure of reeducation through labor is an administrative legal procedure, rather than a procedural procedure, its administrative characteristics and the characteristics of reeducation through labor are quite distinct. According to the regulations on the Trial Measures for reeducation through labor and the detailed rules and regulations of various places, the reeducation through labor suitable
WP=3
The procedures include investigation, examination, examination and approval, and reconsideration.
Although the system of reeducation through labor in our country is similar to that of the short term free punishment and the administrative measures of public security, reception and repatriation and public security detention, there are still some differences in many aspects, such as the legal basis, the applicable object, the nature and the execution. At the same time, the system of reeducation through labor in our country is in nature and applicable to foreign security measures. There are differences in the right of decision and so on.
Reeducation through labor is a great initiative in the socialist revolution and construction of our country. It is a socialist legal system with Chinese characteristics of education, saving, affecting illegal and minor offences. The creation and development of reeducation through labor not only educates people, but also improves the legal system of our country. The course of the implementation of labor education. In view of the present situation, the existence of this system has its inevitability and rationality, such as the application of punishment to those who are not enough criminal penalties, but not enough to prevent their social harmfulness by public security punishment regulations. The system of reeducation through labor adapts to the level of the development of our society, economy and the legal system since the founding of the people's Republic of China, and also satisfies the judicial practice. Practice has proved that the role of reeducation through labor in maintaining social stability is difficult to replace by other legal means.
However, from the rule of law principle of the rule of law, there are serious defects in this system. With the perfection of socialist democracy and legal system, the legitimacy and rationality of the existence of the system of reeducation through labor is being questioned more and more. The defects of the system of reeducation through labor are many aspects, such as the law of the reeducation through labor system and the unsound basis of the regulations, The position of the reeducation through labor is not clear, the nature of the reeducation through labor is not clear, as well as the lack of appropriateness in the punishment intensity in the provisions of the reeducation through labor, the application of the region is not in conformity with the status quo, the scope of the object is too narrow, the standard of the quantity and punishment is not perfect, and so on. The existence of illegitimacy and the unreasonable setting of reeducation through labor institutions and so on.
In view of the various malpractices and defects in the reeducation through labor, we must further improve the various systems of reeducation through labor in our country. First, it should be legislated in order to further clarify the status and nature of the reeducation through labor in theory and law. Secondly, it is necessary to confirm the object and scope of the reeducation through labor and the reeducation of labor. And punishment
WP=4
It is necessary to make a clear distinction between the object of the punishment and the punishment of the public security. In addition, the provisions of the procedure of reeducation through labor should be perfected as soon as possible. To abolish the long term labor reeducation Management Committee, clear the examination and approval department of the public security organs for the reeducation through labor, shorten the period of the reeducation through labor, and reflect the light of the reeducation through the penal punishment but more than the treatment. At the same time, it summarizes the successful experience of the management of labor education, establishes the management system that is consistent with the reeducation through labor, guarantees the legitimate rights and interests of the workers, and distinguishes the labor and criminal punishment from the criminal punishment.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2002
【分类号】：D926.8

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