就業(yè)中的前科歧視研究
發(fā)布時間：2018-08-09 14:09
【摘要】： 就業(yè)對于和諧社會的構(gòu)建至關(guān)重要。我國目前在就業(yè)中存在多種類型的歧視,對有前科公民違法犯罪記錄的歧視即為其中之一。 在上海進行的對有犯罪前科公民就業(yè)狀況的實證調(diào)查表明:雖然國家和政府出臺了很多安置有犯罪前科公民就業(yè)的措施,有前科公民的實際就業(yè)狀況很糟糕,其中最大的障礙也即最嚴重的歧視是對違法犯罪前科的歧視。我國現(xiàn)行很多法律法規(guī)也明確嚴格限制有前科公民的就業(yè)資格,受到限制的職業(yè)種類廣泛,造成嚴重的職業(yè)隔離。 從反就業(yè)歧視的角度來說,“前科”的界定應該比較寬泛,即凡因違法違紀而被記錄在案的事實都屬于前科。前科歧視應定義為針對有前科公民實施的旨在克減、限制或剝奪其法律權(quán)利的任何不合理的區(qū)別對待措施。前科歧視目前在我國主要表現(xiàn)為直接歧視,其構(gòu)成要件主要是對有前科公民權(quán)利的剝奪或限制構(gòu)成了不合理的差別對待。前科歧視的核心問題為對有前科公民的差別待遇是否合理。 我國現(xiàn)行法律法規(guī)對有前科公民就業(yè)資格的剝奪或限制構(gòu)成了差別對待,從報應刑罰主義和社會防衛(wèi)的角度來看,這種限制有一定的合理性,但是,實質(zhì)上這種差別待遇是不合理的。不合理的原因有:這種差別對待構(gòu)成不合理歸類;違背了“責任相稱”原則;違背了馬克思主義哲學精神;侵犯了平等就業(yè)權(quán);同時與諸多現(xiàn)代刑事政策相違背。借鑒德國法上的比例原則來分析,這種差別待遇也是不符合適當性原則、必要性原則和法意相稱原則。鑒于此,我國現(xiàn)行法律法規(guī)對有前科公民就業(yè)資格的剝奪構(gòu)成了歧視。 從憲法學的角度來分析,前科歧視的本質(zhì)是侵犯了有前科公民的平等就業(yè)權(quán)。禁止前科歧視的關(guān)鍵是保障形式平等,核心是保障有前科公民的起點平等,同時輔以實質(zhì)平等的保障。從這種差別待遇產(chǎn)生的根源來分析,前科歧視違反了不當聯(lián)結(jié)禁止原則。 我國應當立法禁止前科歧視。主要原因有:法律禁止前科歧視體現(xiàn)了法的正義性,符合人道主義原則;禁止前科歧視有利于違法犯罪者復歸社會,有利于社會的穩(wěn)定;禁止前科歧視是發(fā)展市場經(jīng)濟的需要;禁止前科歧視是尊重和保障人權(quán)的需要。 通過對世界各國對有前科公民的公務(wù)員資格的比較研究,我們發(fā)現(xiàn)中國是對有前科公民公務(wù)員資格限制比較嚴格的國家之一。世界上制定反就業(yè)歧視的國家中,在法律中明確禁止前科歧視的國家很少。加拿大、韓國等國的立法是明確禁止基于犯罪記錄的歧視。美國有少數(shù)州有類似的立法。在美國司法實踐中,法院審理前科歧視案件采取的是合理性審查標準,因此,涉及限制有前科公民就業(yè)資格的案件大都判為合憲。國外立法和實踐對中國的啟示是:我們應該采取寬容的原則來合理限制有前科公民的就業(yè)資格,將限制的程度限定在是否與職業(yè)有關(guān)。 我國應從立法、執(zhí)法和司法三個層面來保障有前科的公民不受歧視。 在立法方面,首先,法律應明確禁止前科歧視,立法中要秉持利益平衡原則,平衡社會公共安全與有前科者的個人利益,平衡有前科者的平等就業(yè)權(quán)與用人單位的用人自主權(quán);同時采納關(guān)聯(lián)性原則和有利原則。其次,我國應逐步廢除或修改現(xiàn)行限制或剝奪有前科公民就業(yè)資格的法律法規(guī)。主要修改方向為:限制有與職業(yè)不相容的違法犯罪前科者的就業(yè)資格;應將限制或剝奪就業(yè)資格的人群限定在有特定犯罪前科的公民;應完全排除對過失犯之限制;應完全廢除終身限制就業(yè)資格之法律;應排除對緩刑期滿者之就業(yè)資格限制,應排除對承擔防衛(wèi)過當或避險過當刑事責任者之就業(yè)資格;應完全排除假釋考驗期滿者之就業(yè)資格限制。 行政機關(guān)應通過正確執(zhí)法來保護有前科者不受歧視。同時,我國應當形成一個以私意訴訟(包括傳統(tǒng)的民事訴訟和行政訴訟)為基礎(chǔ),以公益訴訟為補充,以憲法訴訟為后盾的符合中國國情、立體的訴訟體系來保障前科者的公平就業(yè)權(quán)。
[Abstract]:Employment is of great importance to the construction of a harmonious society. There are many types of discrimination in our country, and one of the discrimination against the record of criminal offenses of the former citizens is one of them.
An empirical investigation of the employment status of criminal pre criminal citizens in Shanghai shows that, although the state and the government have introduced many measures for the employment of criminal pre criminal citizens, the actual employment situation of the former citizens is very bad, and the biggest obstacle is that the most serious discrimination is the discrimination against the criminal offense. Laws and regulations also strictly restrict employment qualifications of former citizens, and a wide range of restricted occupations, resulting in serious occupational segregation.
From the point of view of anti employment discrimination, the definition of "criminal record" should be more broad, that is, the fact that the facts are recorded in the case of violation of law and discipline are all the former. The former discrimination should be defined as any unreasonable treatment measures aimed at reducing, restricting or depriving the legal rights of the former citizens. The main component of the state is direct discrimination, which constitutes an unreasonable and differential treatment of the deprivation or restriction of the civil rights of the former criminal. The core of the discrimination in the former section is whether the differential treatment of the former citizens is reasonable.
The current laws and regulations in China constitute a differential treatment for the deprivation or restriction of the qualifications of the former citizens. From the perspective of the retribution and social defense, this limitation is reasonable. However, in essence, this kind of differential treatment is unreasonable. The principle of "proportionality of responsibility"; violating the spirit of Marx's philosophy; violating the right to equal employment; contrary to many modern criminal policies. Using the principle of proportionality in German law as a reference, this differential treatment is also inconsistent with the principle of appropriate sex, the principle of necessity and the principle of legal proportionality. In view of this, our current laws and regulations are The deprivation of employment qualifications of citizens with criminal record constitutes discrimination.
From the angle of constitutionalism, the essence of discrimination in the front is to infringe on the equal right to employment of the former citizens. The key to prohibiting former discrimination is the equality of security forms. The core is to guarantee the equality of the starting point for the former citizens and the guarantee of the substantive equality. The principle of joint prohibition.
Our country should legislate against former discrimination. The main reasons are: the law prohibition of discrimination before the law embodies the justice of law and the principle of humanitarianism; the prohibition of previous discrimination is conducive to the return of the offenders to the society and the social stability; the prohibition of previous discrimination is the need for the development of the market economy; the prohibition of previous discrimination is the respect for and protection of human rights. The need.
We have found that China is one of the countries with stricter restrictions on the qualification of civil servants in the past. In the world, there are few countries that explicitly prohibit discrimination in the law. The legislation of Canada, South Korea and other countries is clearly prohibited. To stop discrimination based on criminal records. There are similar legislation in a few states in the United States. In the judicial practice of the United States, the court takes a standard of reasonableness in hearing the case of prejudice. Therefore, most cases involving restrictions on the qualifications of the former citizens are judged to be constitutionality. The Enlightenment of foreign legislation and practice to China is that we should take tolerance. The principle of limiting the employment qualification of a former citizen is limited to whether it is related to occupation.
Our country should protect the citizens with previous conviction from the three levels of legislation, law enforcement and justice.
In the legislative aspect, first of all, the law should clearly prohibit the former discrimination. In the legislation, we should uphold the principle of balance of interests, balance the social public safety and the personal interests of the former practitioners, balance the equal employment rights of the former practitioners and the employers' autonomy, and adopt the relevant original principles and favorable principles. Secondly, China should gradually abolish or amend our country. The current restrictions or deprivation of the qualifications for employment of a former citizen. The main revision is to limit the employment qualifications of a criminal offender who is incompatible with a profession; a person who is restricted or deprived of the employment qualification should be limited to a citizen with a specific criminal record; the limitation on the offense should be completely excluded; the life-long limitation should be completely abolished. The law of employment qualification should exclude the restrictions on the employment qualification of the expiry of probation, and should exclude the qualifications for the employment of those who have been responsible for the excessive defense or to avoid the risk of being a criminal liability; the qualification limit of the expiry of the probation of the probation of parole should be completely excluded.
The administrative organs should protect the former subjects from discrimination through correct law enforcement. At the same time, our country should form a legal system based on private meaning litigation (including traditional civil litigation and administrative litigation), supplemented by public interest litigation and a constitutional suit in accordance with the national conditions of China, to ensure the fair employment right of the former practitioners.
【學位授予單位】：上海交通大學
【學位級別】：博士
【學位授予年份】：2009
【分類號】：C913.2;D920.4
本文編號：2174321
[Abstract]:Employment is of great importance to the construction of a harmonious society. There are many types of discrimination in our country, and one of the discrimination against the record of criminal offenses of the former citizens is one of them.
An empirical investigation of the employment status of criminal pre criminal citizens in Shanghai shows that, although the state and the government have introduced many measures for the employment of criminal pre criminal citizens, the actual employment situation of the former citizens is very bad, and the biggest obstacle is that the most serious discrimination is the discrimination against the criminal offense. Laws and regulations also strictly restrict employment qualifications of former citizens, and a wide range of restricted occupations, resulting in serious occupational segregation.
From the point of view of anti employment discrimination, the definition of "criminal record" should be more broad, that is, the fact that the facts are recorded in the case of violation of law and discipline are all the former. The former discrimination should be defined as any unreasonable treatment measures aimed at reducing, restricting or depriving the legal rights of the former citizens. The main component of the state is direct discrimination, which constitutes an unreasonable and differential treatment of the deprivation or restriction of the civil rights of the former criminal. The core of the discrimination in the former section is whether the differential treatment of the former citizens is reasonable.
The current laws and regulations in China constitute a differential treatment for the deprivation or restriction of the qualifications of the former citizens. From the perspective of the retribution and social defense, this limitation is reasonable. However, in essence, this kind of differential treatment is unreasonable. The principle of "proportionality of responsibility"; violating the spirit of Marx's philosophy; violating the right to equal employment; contrary to many modern criminal policies. Using the principle of proportionality in German law as a reference, this differential treatment is also inconsistent with the principle of appropriate sex, the principle of necessity and the principle of legal proportionality. In view of this, our current laws and regulations are The deprivation of employment qualifications of citizens with criminal record constitutes discrimination.
From the angle of constitutionalism, the essence of discrimination in the front is to infringe on the equal right to employment of the former citizens. The key to prohibiting former discrimination is the equality of security forms. The core is to guarantee the equality of the starting point for the former citizens and the guarantee of the substantive equality. The principle of joint prohibition.
Our country should legislate against former discrimination. The main reasons are: the law prohibition of discrimination before the law embodies the justice of law and the principle of humanitarianism; the prohibition of previous discrimination is conducive to the return of the offenders to the society and the social stability; the prohibition of previous discrimination is the need for the development of the market economy; the prohibition of previous discrimination is the respect for and protection of human rights. The need.
We have found that China is one of the countries with stricter restrictions on the qualification of civil servants in the past. In the world, there are few countries that explicitly prohibit discrimination in the law. The legislation of Canada, South Korea and other countries is clearly prohibited. To stop discrimination based on criminal records. There are similar legislation in a few states in the United States. In the judicial practice of the United States, the court takes a standard of reasonableness in hearing the case of prejudice. Therefore, most cases involving restrictions on the qualifications of the former citizens are judged to be constitutionality. The Enlightenment of foreign legislation and practice to China is that we should take tolerance. The principle of limiting the employment qualification of a former citizen is limited to whether it is related to occupation.
Our country should protect the citizens with previous conviction from the three levels of legislation, law enforcement and justice.
In the legislative aspect, first of all, the law should clearly prohibit the former discrimination. In the legislation, we should uphold the principle of balance of interests, balance the social public safety and the personal interests of the former practitioners, balance the equal employment rights of the former practitioners and the employers' autonomy, and adopt the relevant original principles and favorable principles. Secondly, China should gradually abolish or amend our country. The current restrictions or deprivation of the qualifications for employment of a former citizen. The main revision is to limit the employment qualifications of a criminal offender who is incompatible with a profession; a person who is restricted or deprived of the employment qualification should be limited to a citizen with a specific criminal record; the limitation on the offense should be completely excluded; the life-long limitation should be completely abolished. The law of employment qualification should exclude the restrictions on the employment qualification of the expiry of probation, and should exclude the qualifications for the employment of those who have been responsible for the excessive defense or to avoid the risk of being a criminal liability; the qualification limit of the expiry of the probation of the probation of parole should be completely excluded.
The administrative organs should protect the former subjects from discrimination through correct law enforcement. At the same time, our country should form a legal system based on private meaning litigation (including traditional civil litigation and administrative litigation), supplemented by public interest litigation and a constitutional suit in accordance with the national conditions of China, to ensure the fair employment right of the former practitioners.
【學位授予單位】：上海交通大學
【學位級別】：博士
【學位授予年份】：2009
【分類號】：C913.2;D920.4
【引證文獻】
相關(guān)期刊論文 前1條
1 楊彩云;;社區(qū)服刑人員的社會融入與精神健康:基于上海的實證研究[J];華東理工大學學報(社會科學版);2014年04期
相關(guān)博士學位論文 前1條
1 左迪;美國聯(lián)邦法院對反性別就業(yè)歧視案件的裁判[D];廈門大學;2014年
相關(guān)碩士學位論文 前3條
1 鳳午香;前科限制就業(yè)研究[D];安徽大學;2011年
2 馮堅;前科消滅制度研究[D];廣西師范大學;2012年
3 沈剛;試論我國未成年人犯罪前科消滅制度的構(gòu)建[D];湖南師范大學;2012年
，本文編號：2174321
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