我国劳动教养制度的宪法分析
发布时间：2018-10-09 21:39
【摘要】： 劳动教养制度是我国特定历史条件创设的具有中国特色的一种法律制度。我们不能否认这一制度在中国社会曾经起到过积极作用,但随着我国法治进程的推进和依法治国方略的实施,这一制度的不合法、不合理性日益凸现,在中国存在了将近50年的劳动教养制度正面临着被质疑、批评、改革乃至废弃的命运。本文在分析劳动教养制度存废的几种观点的基础上,从宪法的角度阐述了劳动教养制度所存在的宪法缺陷,并希冀为我国劳动教养制度的出路开辟一条理论上的通道。 本文由三个部分组成。第一部分全面阐述了我国学界有关劳动教养制度的基本理论。我国法学界对劳动教养的定性存在较大的分歧,存在诸多不同的观点。"行政强制说"、"行政处罚说"、"治安行政处罚说"、"保安处分说"、和"教养处遇说"就是其中影响比较大的观点。在对劳动教养进行定性的基础上,本文则进一步阐述了我国学界对劳动教养制度存废的两种理论:完善论和废除论。 第二部分在第一部分的基础上,从宪法的角度对我国现行的劳动教养制度进行了剖析。按照宪法的基本精神与根本原则,我国劳动教养制度存在诸多宪法问题,它违背了宪法的诸多原则,即它违背了法律保留原则、正当程序原则、比例原则、以及司法接近原则。 第三部分则进一步认为既然我国劳动教养存在不可避免的违宪嫌疑,其应该予以废除。在废除劳动教养制度方面,我国法学界存在两种不同的思路,即废除劳动教养的入罪化立法模式与行政主体司法化模式。本文对这两种模式进行了分析比较,认为我国现阶段宜选择废除模式中的行政主体的司法化模式,并设计出一个具有操作性的改革方案。
[Abstract]:The system of reeducation through labor is a kind of legal system with Chinese characteristics created under the specific historical conditions of our country. We cannot deny that this system has played a positive role in Chinese society, but with the advancement of the process of rule of law and the implementation of the strategy of governing the country according to law, the illegality and irrationality of this system have become increasingly prominent. The reeducation through labor system, which has existed in China for nearly 50 years, is facing the fate of being questioned, criticized, reformed and even abandoned. Based on the analysis of several viewpoints on the existence and abolition of the system of re-education through labor, this paper expounds the constitutional defects of the system of re-education through labor from the angle of the constitution, and hopes to open up a theoretical channel for the outlet of the system of re-education through labor in China. This paper consists of three parts. The first part comprehensively expounds the basic theory of reeducation through labor system in Chinese academic circles. There are many different views on the nature of reeducation through labor in Chinese legal circles. " "Administrative compulsion", "Administrative punishment", "Public Security Administrative punishment", "Security punishment" and "Correctional Services" are the most influential viewpoints. On the basis of qualitative analysis of reeducation through labor, this paper further expounds the two theories of the retention and abolition of the system of reeducation through labor in Chinese academic circles: the theory of perfection and the theory of abolition. The second part, on the basis of the first part, analyzes the current system of reeducation through labor from the angle of constitution. According to the basic spirit and fundamental principles of the Constitution, there are many constitutional problems in the system of re-education through labor in China, which violates many principles of the Constitution, that is, the principle of legal reservation, the principle of due process, the principle of proportionality, and the principle of judicial approach. The third part further believes that since there is an inevitable suspicion of unconstitutionality in China's re-education through labour, it should be abolished. In the aspect of abolishing the system of re-education through labor, there are two different ways of thinking in the legal circles of our country, that is, the legislative mode of criminalizing the abolition of re-education through labour and the mode of judicature of administrative subject. This paper analyzes and compares the two models, and concludes that it is appropriate to choose the judicial mode of abolishing the administrative subject in our country at the present stage, and to design an operable reform scheme.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D926.8
本文编号：2260880
[Abstract]:The system of reeducation through labor is a kind of legal system with Chinese characteristics created under the specific historical conditions of our country. We cannot deny that this system has played a positive role in Chinese society, but with the advancement of the process of rule of law and the implementation of the strategy of governing the country according to law, the illegality and irrationality of this system have become increasingly prominent. The reeducation through labor system, which has existed in China for nearly 50 years, is facing the fate of being questioned, criticized, reformed and even abandoned. Based on the analysis of several viewpoints on the existence and abolition of the system of re-education through labor, this paper expounds the constitutional defects of the system of re-education through labor from the angle of the constitution, and hopes to open up a theoretical channel for the outlet of the system of re-education through labor in China. This paper consists of three parts. The first part comprehensively expounds the basic theory of reeducation through labor system in Chinese academic circles. There are many different views on the nature of reeducation through labor in Chinese legal circles. " "Administrative compulsion", "Administrative punishment", "Public Security Administrative punishment", "Security punishment" and "Correctional Services" are the most influential viewpoints. On the basis of qualitative analysis of reeducation through labor, this paper further expounds the two theories of the retention and abolition of the system of reeducation through labor in Chinese academic circles: the theory of perfection and the theory of abolition. The second part, on the basis of the first part, analyzes the current system of reeducation through labor from the angle of constitution. According to the basic spirit and fundamental principles of the Constitution, there are many constitutional problems in the system of re-education through labor in China, which violates many principles of the Constitution, that is, the principle of legal reservation, the principle of due process, the principle of proportionality, and the principle of judicial approach. The third part further believes that since there is an inevitable suspicion of unconstitutionality in China's re-education through labour, it should be abolished. In the aspect of abolishing the system of re-education through labor, there are two different ways of thinking in the legal circles of our country, that is, the legislative mode of criminalizing the abolition of re-education through labour and the mode of judicature of administrative subject. This paper analyzes and compares the two models, and concludes that it is appropriate to choose the judicial mode of abolishing the administrative subject in our country at the present stage, and to design an operable reform scheme.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D926.8
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