勞動(dòng)教養(yǎng)制度的廢止與替代
發(fā)布時(shí)間：2018-08-23 20:30
【摘要】：勞動(dòng)教養(yǎng)制度是頗具中國特色的一種法律制度。50多年來,勞動(dòng)教養(yǎng)制度為維護(hù)社會(huì)穩(wěn)定、人民安居樂業(yè)、打擊違法活動(dòng)和輕微犯罪保障社會(huì)主義現(xiàn)代化建設(shè)順利進(jìn)行方面作出了突出貢獻(xiàn),特別是在打擊黑惡勢力、毒品犯罪、邪教組織和黃賭毒違法犯罪、維護(hù)社會(huì)治安、預(yù)防和減少犯罪中發(fā)揮了積極的作用。 一直以來,學(xué)術(shù)界和司法實(shí)務(wù)部門對(duì)勞動(dòng)教養(yǎng)的性質(zhì)存在不同的認(rèn)識(shí),加之這一制度本身存在諸多缺陷,對(duì)其爭議頗大,觀點(diǎn)各異。自1987年以來,隨著勞動(dòng)教養(yǎng)立法列人國家立法議程,關(guān)于勞動(dòng)教養(yǎng)制度是存是廢的爭論也達(dá)到了頂峰。應(yīng)當(dāng)看到,現(xiàn)存的勞動(dòng)教養(yǎng)制度已經(jīng)失去了上位法的規(guī)范支持,但它在我國社會(huì)中依然運(yùn)作并發(fā)揮著作用,這一現(xiàn)象與我國進(jìn)行法治建設(shè)的步調(diào)是不合拍的,關(guān)鍵是我們要建構(gòu)一種制度,既能保留和發(fā)揮勞教制度的積極作用,同時(shí)又符合法治化的要求,才能使這一不正常的現(xiàn)象得到根本的改變。 本文共分五章對(duì)我國勞動(dòng)教養(yǎng)制度展開研究,在概括我國現(xiàn)行勞動(dòng)教養(yǎng)制度的特征以及性質(zhì),梳理和分析勞動(dòng)教養(yǎng)制度產(chǎn)生演變的歷史以及當(dāng)前面臨的困境后,對(duì)學(xué)術(shù)界關(guān)于勞動(dòng)教養(yǎng)存廢爭論的不同理由點(diǎn)進(jìn)行歸納分析,并在評(píng)價(jià)兩種截然相反觀點(diǎn)的基礎(chǔ)上,提出替代現(xiàn)行勞動(dòng)教養(yǎng)的制度構(gòu)想——治安管制制度。 第一章:勞動(dòng)教養(yǎng)制度概述。勞動(dòng)教養(yǎng)是指行政機(jī)關(guān)對(duì)嚴(yán)重違反治安管理法規(guī),屢教不改,或有輕微犯罪行為但尚不夠刑事處罰條件且有勞動(dòng)能力,放在社會(huì)上又會(huì)造成危害的人采取的,以限制人身自由為內(nèi)容,實(shí)行強(qiáng)制性教育改造,以維護(hù)社會(huì)治安,預(yù)防和減少犯罪的處罰措施。隨著我國政治、經(jīng)濟(jì)的不斷發(fā)展和社會(huì)治安狀況的變化,我國勞動(dòng)教養(yǎng)的性質(zhì)經(jīng)歷了一個(gè)較長時(shí)間的發(fā)展和演變過程。立足于現(xiàn)實(shí)的角度,從實(shí)際的效果審視勞動(dòng)教養(yǎng)制度,我們不難看出勞動(dòng)教養(yǎng)比我國刑法中規(guī)定的管制、拘役和短期自由刑還要嚴(yán)厲。從法治的視角來審視,我國當(dāng)前的勞動(dòng)教養(yǎng)是一種違反法治的“刑罰”,是一種“法外之刑”。 第二章:勞動(dòng)教養(yǎng)制度的歷史演進(jìn)。我國的勞動(dòng)教養(yǎng)制度的產(chǎn)生最初是基于建國初期政治斗爭的需要,之后,從“肅反”運(yùn)動(dòng)開始,到中共中央發(fā)布《關(guān)于各省市應(yīng)立即籌辦勞動(dòng)教養(yǎng)機(jī)構(gòu)的指示》,再到國務(wù)院公布的《關(guān)于勞動(dòng)教養(yǎng)問題的決定》、《關(guān)于勞動(dòng)教養(yǎng)問題的補(bǔ)充規(guī)定》、《勞動(dòng)教養(yǎng)試行辦法》等,一系列法律法規(guī)不斷出臺(tái)并在實(shí)踐中不斷地探索,逐步形成了一個(gè)體系,從而實(shí)現(xiàn)了勞動(dòng)教養(yǎng)制度從政治性向法律性的轉(zhuǎn)變。整個(gè)歷史演進(jìn)過程可分為政治性運(yùn)作時(shí)期、從政治性向法律性的轉(zhuǎn)變、法制化構(gòu)建三個(gè)階段。 第三章:勞動(dòng)教養(yǎng)制度面臨的困境。隨著我國政治、經(jīng)濟(jì)、文化等方面的發(fā)展變化,特別是“依法治國”方略的確立和憲法對(duì)人權(quán)保護(hù)的日益重視以及以人為本的科學(xué)發(fā)展觀的提出,勞動(dòng)教養(yǎng)在多個(gè)方面都明顯滯后于時(shí)代的要求,存在著諸多的問題,主要體現(xiàn)在:規(guī)范層面上的困境、與我國參加的國際人權(quán)公約的沖突、適用對(duì)象上的沖突、限制人身自由強(qiáng)度的倒錯(cuò)、缺乏有效監(jiān)督與救濟(jì)途徑等五個(gè)方面。 第四章:勞動(dòng)教養(yǎng)制度的存廢之爭。勞動(dòng)教養(yǎng)的合理性、公正性問題歷來在學(xué)界存在不同看法,概括起來,主要有“保留論”、“廢除論”二種觀點(diǎn)。肯定者認(rèn)為,勞動(dòng)教養(yǎng)制度從過去到現(xiàn)在都是一種具有中國特色的制度,一直發(fā)揮著維護(hù)社會(huì)治安、保障著社會(huì)主義現(xiàn)代化建設(shè)的順利進(jìn)行的積極作用,在新的時(shí)期仍具有不可替代性;反對(duì)者則認(rèn)為,經(jīng)過五十多年的發(fā)展演變,勞動(dòng)教養(yǎng)制度的性質(zhì)和作用己與最初設(shè)計(jì)的初衷有了很大不同,批評(píng)勞動(dòng)教養(yǎng)制度是一種侵犯人權(quán)的制度,己經(jīng)失去了存在的法治基礎(chǔ)。保留論者充分肯定勞動(dòng)教養(yǎng)的積極的作用,但忽視了少數(shù)人的人權(quán),其正義性必將受到質(zhì)疑。廢除論者看到了勞動(dòng)教養(yǎng)的反法治性和非正義性,但沒有能夠找到一種很好的替代制度來填補(bǔ)廢除勞動(dòng)教養(yǎng)而帶來的制度空缺,因而其觀點(diǎn)并沒有得到立法者的認(rèn)可。 第五章:以治安管制制度替代勞動(dòng)教養(yǎng)的制度。我國現(xiàn)存的勞動(dòng)教養(yǎng)制度之所以在缺乏規(guī)范基礎(chǔ)的情況下依然運(yùn)作,與其說是情感上的難以割舍,不如說是對(duì)其功利的普遍認(rèn)同。關(guān)鍵是我們要建構(gòu)一種制度,既能保留和發(fā)揮勞教制度的積極作用,又能合理解決保障人權(quán)維護(hù)社會(huì)秩序的平衡,符合法治化的要求,才能真正使這一不正常的現(xiàn)象得到根本的改變。自改革開放以來,我國在經(jīng)濟(jì)快速發(fā)展的前提下,保持了社會(huì)秩序基本穩(wěn)定,這說明我們現(xiàn)行的制度體系從總體上說是符合社會(huì)發(fā)展要求的,并沒有明顯的制度缺失。勞動(dòng)教養(yǎng)制度出現(xiàn)的問題是主要是相關(guān)制度間協(xié)調(diào)、配合的問題,需要的是調(diào)整與整合。沿著這一思路,筆者進(jìn)行了一些探索,通過整合勞動(dòng)教養(yǎng)和管制刑構(gòu)想了一種替代現(xiàn)存勞動(dòng)教養(yǎng)制度的行政處罰——治安管制制度。
[Abstract]:The reeducation-through-labor system is a kind of legal system with Chinese characteristics. Over the past 50 years, the system has made outstanding contributions to safeguarding social stability, people's living and working in peace and contentment, cracking down on illegal activities and minor crimes, and ensuring the smooth progress of socialist modernization, especially in cracking down on evil and evil forces, drug crimes, cult organizations and minor crimes. Illegal gambling and drug crimes play a positive role in maintaining public order and preventing and reducing crimes.
Since 1987, with the reform-through-labor legislation on the national legislative agenda, the debate on whether the system should be abolished or not has reached its peak. When we see that the existing reeducation-through-labor system has lost the normative support of the upper law, but it still operates and plays a role in our society. This phenomenon does not coincide with the pace of the construction of the rule of law in China. The key is that we should construct a system which can not only retain and play the positive role of the reeducation-through-labor system, but also conform to it. The requirement of rule of law can make this abnormal phenomenon fundamentally changed.
This article is divided into five chapters to study the system of reeducation-through-labor in China. After summarizing the characteristics and nature of the current system of reeducation-through-labor in China, combing and analyzing the history of the evolution of the system of reeducation-through-labor and the difficulties it is facing at present, this paper sums up and analyzes the different reasons for the controversy on the preservation and abolition of the system of reeducation-through-labor in the academic circle On the basis of a completely opposite viewpoint, this paper puts forward the idea of replacing the current system of reeducation-through-labor, namely, the public security control system.
Chapter 1: Overview of the Reeducation-through-labour system. It refers to the compulsory education and reform carried out by the administrative organs for those who seriously violate the laws and regulations governing public security, refrain from reforming their education, or commit minor crimes but are not qualified for criminal punishment and have the ability to work, which may cause harm to the society, taking restriction of personal freedom as the content and carrying out compulsory education and Reform in order to safeguard public security. The nature of Reeducation-through-labour has undergone a long period of development and evolution along with the continuous development of politics, economy and the change of social public order. From a realistic point of view, we can see that Reeducation-through-labour system is effective in practice. Rehabilitation through labor is a kind of "penalty" which violates the rule of law and a kind of "punishment outside the law".
Chapter Two: Historical Evolution of the Reeducation-through-Labor System. The emergence of the system was initially based on the needs of political struggle in the early days of the founding of the People's Republic of China. Then, from the "anti-revolutionary" movement to the Central Committee of the Communist Party of China, it issued the "Directive on Provinces and Municipalities Should Prepare Institutions for Reeducation-through-labor" and then to the " Decision >, < Supplementary Provisions on the Problem of Rehabilitation through Labor >, < Trial Measures for Rehabilitation through Labor > and so on, a series of laws and regulations have been promulgated and explored in practice, and a system has been gradually formed, thus realizing the transformation of the system of reeducation through labor from political to legal. The whole historical evolution process can be divided into political operation period, and from political operation period to legal operation period. The transformation from political nature to legality and three stages of legalization construction.
Chapter 3: The dilemma faced by the reeducation-through-labor system. With the development and change of China's politics, economy and culture, especially the establishment of the general plan of ruling the country according to law, the increasing attention paid by the Constitution to the protection of human rights and the proposition of the people-oriented scientific concept of development, reeducation-through-labor lags behind the requirements of the times in many aspects. Many problems are mainly reflected in the following five aspects: the dilemma at the normative level, the conflict with the international human rights conventions to which China is a party, the conflict on the object of application, the reversal of restricting the intensity of personal freedom, and the lack of effective supervision and relief channels.
Chapter Four: Disputes over the Rehabilitation-through-Labor System. The rationality and fairness of reeducation-through-labor have always been different views in the academic circles. Generally speaking, there are mainly two viewpoints: reservation theory and abolition theory. Social security, guaranteeing the smooth progress of socialist modernization, still has an irreplaceable positive role in the new period; opponents believe that, after more than 50 years of development and evolution, the nature and role of the reeducation-through-labor system has been very different from the original design, criticizing the reeducation-through-labor system is an infringement. The system of rights has lost its legal basis. Reservationists fully affirm the positive role of reeducation through labor, but ignore the human rights of minorities, and their justice will be questioned. Abolitionists see the anti-legal and unjust nature of reeducation through labor, but they can not find a good alternative system to fill the abolition of labor. The system vacancy caused by reeducation has not been approved by legislators.
Chapter Five: Replacing the system of reeducation-through-labor with the system of public security control. The reason why the existing system of reeducation-through-labor still operates in the absence of a normative basis is not so much emotional difficulty as a general recognition of its utility. The key is to construct a system that can both preserve and give full play to the system of reeducation-through-labor. Since the reform and opening up, China has maintained the basic stability of social order on the premise of rapid economic development, which shows that our current system is from the overall perspective. It is in line with the requirements of social development, and there is no obvious lack of system. The problems in the reeducation-through-labor system are mainly the problems of coordination and coordination among the relevant systems, and the adjustment and integration are needed. Along this line of thought, the author has made some explorations and conceived a substitute for the existing reeducation-through-labor system by integrating the reeducation-through-labor system with the control penalty. The administrative penalty of the maintenance system - the public order control system.
【學(xué)位授予單位】：中南民族大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D926.8
本文編號(hào)：2199839
[Abstract]:The reeducation-through-labor system is a kind of legal system with Chinese characteristics. Over the past 50 years, the system has made outstanding contributions to safeguarding social stability, people's living and working in peace and contentment, cracking down on illegal activities and minor crimes, and ensuring the smooth progress of socialist modernization, especially in cracking down on evil and evil forces, drug crimes, cult organizations and minor crimes. Illegal gambling and drug crimes play a positive role in maintaining public order and preventing and reducing crimes.
Since 1987, with the reform-through-labor legislation on the national legislative agenda, the debate on whether the system should be abolished or not has reached its peak. When we see that the existing reeducation-through-labor system has lost the normative support of the upper law, but it still operates and plays a role in our society. This phenomenon does not coincide with the pace of the construction of the rule of law in China. The key is that we should construct a system which can not only retain and play the positive role of the reeducation-through-labor system, but also conform to it. The requirement of rule of law can make this abnormal phenomenon fundamentally changed.
This article is divided into five chapters to study the system of reeducation-through-labor in China. After summarizing the characteristics and nature of the current system of reeducation-through-labor in China, combing and analyzing the history of the evolution of the system of reeducation-through-labor and the difficulties it is facing at present, this paper sums up and analyzes the different reasons for the controversy on the preservation and abolition of the system of reeducation-through-labor in the academic circle On the basis of a completely opposite viewpoint, this paper puts forward the idea of replacing the current system of reeducation-through-labor, namely, the public security control system.
Chapter 1: Overview of the Reeducation-through-labour system. It refers to the compulsory education and reform carried out by the administrative organs for those who seriously violate the laws and regulations governing public security, refrain from reforming their education, or commit minor crimes but are not qualified for criminal punishment and have the ability to work, which may cause harm to the society, taking restriction of personal freedom as the content and carrying out compulsory education and Reform in order to safeguard public security. The nature of Reeducation-through-labour has undergone a long period of development and evolution along with the continuous development of politics, economy and the change of social public order. From a realistic point of view, we can see that Reeducation-through-labour system is effective in practice. Rehabilitation through labor is a kind of "penalty" which violates the rule of law and a kind of "punishment outside the law".
Chapter Two: Historical Evolution of the Reeducation-through-Labor System. The emergence of the system was initially based on the needs of political struggle in the early days of the founding of the People's Republic of China. Then, from the "anti-revolutionary" movement to the Central Committee of the Communist Party of China, it issued the "Directive on Provinces and Municipalities Should Prepare Institutions for Reeducation-through-labor" and then to the " Decision >, < Supplementary Provisions on the Problem of Rehabilitation through Labor >, < Trial Measures for Rehabilitation through Labor > and so on, a series of laws and regulations have been promulgated and explored in practice, and a system has been gradually formed, thus realizing the transformation of the system of reeducation through labor from political to legal. The whole historical evolution process can be divided into political operation period, and from political operation period to legal operation period. The transformation from political nature to legality and three stages of legalization construction.
Chapter 3: The dilemma faced by the reeducation-through-labor system. With the development and change of China's politics, economy and culture, especially the establishment of the general plan of ruling the country according to law, the increasing attention paid by the Constitution to the protection of human rights and the proposition of the people-oriented scientific concept of development, reeducation-through-labor lags behind the requirements of the times in many aspects. Many problems are mainly reflected in the following five aspects: the dilemma at the normative level, the conflict with the international human rights conventions to which China is a party, the conflict on the object of application, the reversal of restricting the intensity of personal freedom, and the lack of effective supervision and relief channels.
Chapter Four: Disputes over the Rehabilitation-through-Labor System. The rationality and fairness of reeducation-through-labor have always been different views in the academic circles. Generally speaking, there are mainly two viewpoints: reservation theory and abolition theory. Social security, guaranteeing the smooth progress of socialist modernization, still has an irreplaceable positive role in the new period; opponents believe that, after more than 50 years of development and evolution, the nature and role of the reeducation-through-labor system has been very different from the original design, criticizing the reeducation-through-labor system is an infringement. The system of rights has lost its legal basis. Reservationists fully affirm the positive role of reeducation through labor, but ignore the human rights of minorities, and their justice will be questioned. Abolitionists see the anti-legal and unjust nature of reeducation through labor, but they can not find a good alternative system to fill the abolition of labor. The system vacancy caused by reeducation has not been approved by legislators.
Chapter Five: Replacing the system of reeducation-through-labor with the system of public security control. The reason why the existing system of reeducation-through-labor still operates in the absence of a normative basis is not so much emotional difficulty as a general recognition of its utility. The key is to construct a system that can both preserve and give full play to the system of reeducation-through-labor. Since the reform and opening up, China has maintained the basic stability of social order on the premise of rapid economic development, which shows that our current system is from the overall perspective. It is in line with the requirements of social development, and there is no obvious lack of system. The problems in the reeducation-through-labor system are mainly the problems of coordination and coordination among the relevant systems, and the adjustment and integration are needed. Along this line of thought, the author has made some explorations and conceived a substitute for the existing reeducation-through-labor system by integrating the reeducation-through-labor system with the control penalty. The administrative penalty of the maintenance system - the public order control system.
【學(xué)位授予單位】：中南民族大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D926.8
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