论劳教机关民警执法权及其行使困境与对策
发布时间：2019-04-24 08:24
【摘要】： 作为我国警察系列之一的劳动教养管理机关人民警察是人民民主专政的重要工具,是我国独有的劳动教养法律关系主体。自从劳教制度诞生以来,劳教民警克服重重困难,忠诚地履行法律法规赋予的职责,坚定地执行劳动教养法律制度,成功教育挽救了400多万违法和轻微犯罪人员,为预防和控制犯罪、维护社会稳定、促进经济社会发展发挥了不可替代的作用。劳教民警的属性源于劳动教养法律制度,依附于劳动教养机关性质和《人民警察法》等相关法律法规的界定,具有政治上、法律上、社会上和职业上的多种属性。从根本上说,劳教民警的执法权属于国家行政权的一种形式,受劳动教养法律法规的确认和设定。随着劳动教养制度的决定因素的演变,劳教民警执法权也经历了多次变更,从非处罚的安置就业性逐步演变为具有强制性、惩罚性和教育挽救性的属性。从现实考察上看,劳教民警执法权体现出五大内容、四项特征和五种类型。执法权的运行涉及不同方面的内容,表现出行使的实然状态。 然而,随着法治进程的逐步推进,现代文明程度提升,相关法律制度的不断建立和完善,劳动教养法律制度受到诸多质疑,制度运行的处境越发尴尬与艰难。劳教民警执法权的行使日益面临冲击,困境重重。表现在法律制度方面的滞后、冲突、不健全;在体制机制方面的不合理、不完善、不配套,从而导致在执法实践过程中权力短缺、环境欠佳、风险加大、执法模式无特色、执法主体明显弱化与边缘化。 劳教民警执法权是一项必要和重要的行政权,为保障民警执法权得到依法有效的行使,应当健全劳教民警执法权法治系统,具体措施是:以改革劳动教养制度为构建劳教民警执法权法治系统的前提,将劳动教养制度改革为违法行为矫治制度,作为独立的法律处分,与刑罚中的自由刑和行政处罚中的人身罚共同构成我国限制或剥夺人身自由法律处分的完整体系;以理顺体制与机制为基础,调整省市两级管理的体制为省直属统管,避免多头管理、九龙治水的局面,解决建制不一、执法不统一等弊端,以及名称规范与衔接的问题。合理调整机构设置体系,变革所、企、社运行机制,明确经费的保障标准;以建立专业化的警队为保证,改变民警原来的一职多能的“万金油”式执法状况,按照民警所承担的执法任务、职责,根据不同的岗位特点、分工,进行民警专业化建设;以完善执法权的规制为目标,在执法权行使的原则、保障、法律责任、行使方式等方面提出重构的对策。
[Abstract]:As one of the police series of our country, the people's police is an important tool of the people's democratic dictatorship and the main body of the legal relations of the reeducation through labor. Since the birth of the re-education through labour system, the police have overcome many difficulties, faithfully fulfilled the duties entrusted to them by laws and regulations, firmly implemented the legal system of reeducation through labour, and successfully educated more than 4 million people who broke the law and committed minor crimes. In order to prevent and control crime, maintain social stability, promote economic and social development has played an irreplaceable role. The attribute of reeducation-through-labor police originates from the legal system of reeducation-through-labor, which is attached to the definition of the nature of the reeducation-through-labour institution and the people's Police Law and other related laws and regulations, and has various attributes in politics, law, society and occupation. Fundamentally speaking, the enforcement power of the reeducation through labor police belongs to a form of national administrative power, which is confirmed and set up by the laws and regulations of reeducation through labour. With the evolution of the decisive factors of the system of reeducation through labor, the enforcement power of the reeducation through labor police has undergone many changes, from the non-punitive placement and employment to the mandatory, punitive and educational rescue attribute. From the perspective of reality, there are five main contents, four characteristics and five types of the law enforcement power of the reeducation through labor police. The operation of the enforcement power involves different aspects of the content, showing the actual state of exercise. However, with the progressive progress of the rule of law, the promotion of modern civilization, the continuous establishment and improvement of the relevant legal system, the legal system of reeducation through labour has been questioned by many people, and the situation of the system running is becoming more and more awkward and difficult. The exercise of the law enforcement power of the reeducation through labour police is increasingly faced with impact and difficulties. The lag, conflict and imperfection of the legal system; The irrationality, imperfection and incompatibility of the system and mechanism lead to the shortage of power, the poor environment, the increase of the risk, the lack of characteristics of the law enforcement mode and the obvious weakening and marginalization of the main body of the law enforcement in the process of law enforcement practice. The enforcement power of the police through labour is a necessary and important administrative power. In order to ensure the effective exercise of the enforcement power of the police in accordance with the law, we should improve the system of the rule of law of the right of the police to enforce the law of the reeducation through labour. The concrete measures are as follows: to reform the system of reeducation through labour as the premise of constructing the system of law enforcement of the police of reeducation through labor, to reform the system of reeducation through labour as a system of correction for illegal acts, and to act as an independent legal sanction. Together with the free penalty in the penalty and the personal punishment in the administrative punishment, it constitutes the complete system of the legal punishment of restricting or depriving the liberty of the person in our country; On the basis of rationalizing the system and mechanism, adjusting the two-level management system of provinces and cities as provincial direct administration, avoiding multi-head management, the situation of nine dragons governing water, solving the malpractices of different systems and inconsistent law enforcement, as well as the problems of standardization and convergence of names. Reasonable adjustment of the institutional set-up system, reform of the institute, enterprise, social operation mechanism, clearly defined the standard of funding protection; Taking the establishment of specialized police force as a guarantee, changing the police's original "golden oil" law enforcement situation, according to the police's law enforcement tasks and responsibilities, according to the characteristics of different posts, division of labor, police professional construction; In order to perfect the regulation of the enforcement power, the author puts forward the countermeasures of reconstruction in the aspects of the principle, protection, legal responsibility and the way of exercising the enforcement power.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D926.8;D922.14
本文编号：2464297
[Abstract]:As one of the police series of our country, the people's police is an important tool of the people's democratic dictatorship and the main body of the legal relations of the reeducation through labor. Since the birth of the re-education through labour system, the police have overcome many difficulties, faithfully fulfilled the duties entrusted to them by laws and regulations, firmly implemented the legal system of reeducation through labour, and successfully educated more than 4 million people who broke the law and committed minor crimes. In order to prevent and control crime, maintain social stability, promote economic and social development has played an irreplaceable role. The attribute of reeducation-through-labor police originates from the legal system of reeducation-through-labor, which is attached to the definition of the nature of the reeducation-through-labour institution and the people's Police Law and other related laws and regulations, and has various attributes in politics, law, society and occupation. Fundamentally speaking, the enforcement power of the reeducation through labor police belongs to a form of national administrative power, which is confirmed and set up by the laws and regulations of reeducation through labour. With the evolution of the decisive factors of the system of reeducation through labor, the enforcement power of the reeducation through labor police has undergone many changes, from the non-punitive placement and employment to the mandatory, punitive and educational rescue attribute. From the perspective of reality, there are five main contents, four characteristics and five types of the law enforcement power of the reeducation through labor police. The operation of the enforcement power involves different aspects of the content, showing the actual state of exercise. However, with the progressive progress of the rule of law, the promotion of modern civilization, the continuous establishment and improvement of the relevant legal system, the legal system of reeducation through labour has been questioned by many people, and the situation of the system running is becoming more and more awkward and difficult. The exercise of the law enforcement power of the reeducation through labour police is increasingly faced with impact and difficulties. The lag, conflict and imperfection of the legal system; The irrationality, imperfection and incompatibility of the system and mechanism lead to the shortage of power, the poor environment, the increase of the risk, the lack of characteristics of the law enforcement mode and the obvious weakening and marginalization of the main body of the law enforcement in the process of law enforcement practice. The enforcement power of the police through labour is a necessary and important administrative power. In order to ensure the effective exercise of the enforcement power of the police in accordance with the law, we should improve the system of the rule of law of the right of the police to enforce the law of the reeducation through labour. The concrete measures are as follows: to reform the system of reeducation through labour as the premise of constructing the system of law enforcement of the police of reeducation through labor, to reform the system of reeducation through labour as a system of correction for illegal acts, and to act as an independent legal sanction. Together with the free penalty in the penalty and the personal punishment in the administrative punishment, it constitutes the complete system of the legal punishment of restricting or depriving the liberty of the person in our country; On the basis of rationalizing the system and mechanism, adjusting the two-level management system of provinces and cities as provincial direct administration, avoiding multi-head management, the situation of nine dragons governing water, solving the malpractices of different systems and inconsistent law enforcement, as well as the problems of standardization and convergence of names. Reasonable adjustment of the institutional set-up system, reform of the institute, enterprise, social operation mechanism, clearly defined the standard of funding protection; Taking the establishment of specialized police force as a guarantee, changing the police's original "golden oil" law enforcement situation, according to the police's law enforcement tasks and responsibilities, according to the characteristics of different posts, division of labor, police professional construction; In order to perfect the regulation of the enforcement power, the author puts forward the countermeasures of reconstruction in the aspects of the principle, protection, legal responsibility and the way of exercising the enforcement power.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D926.8;D922.14
【引证文献】
相关硕士学位论文 前1条
1 丁洁;劳教人民警察的旅游制约因素研究[D];湖南师范大学;2013年
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