論增設“惡意欠薪罪”的刑法學思考
發(fā)布時間：2018-12-13 19:55
【摘要】： 隨著我國從計劃經濟進入市場經濟時代,社會的城市化進程不斷加快。由于城市規(guī)模的擴大,急需大量的勞動力輸入。但與此同時,外來務工人員的薪酬問題一直久懸不決。自20世紀90年代以來,尤其是在城市基建領域,惡意欠薪的情況更為嚴峻,引起了社會各界的高度關注。實踐中惡意欠薪發(fā)生的領域不斷擴大,從早期的基建領域擴大到普通的服務行業(yè),備受惡意欠薪傷害的人群也在日益增加,由惡意欠薪行為所引發(fā)的暴力沖突頻頻發(fā)生�？梢哉f,惡意欠薪行為已經成為當前危害社會主義和諧社會建設的重要問題之一。正是在此基礎上,相關部門和專家、學者紛紛提議應將惡意欠薪納入到刑法規(guī)制的視野。如在2010年兩會上,有的人大代表認為應當在刑法中增設“惡意欠薪罪”。惡意欠薪行為之所以應當被規(guī)制為犯罪,其根本原因就在于該行為具有嚴重的社會危害性。在我國目前的勞動法、民法等無力應對惡意欠薪行為時,將其納入刑法規(guī)制的范圍,既是貫徹寬嚴相濟刑事政策的需要,也是符合構建和諧社會的宗旨。從國外立法情況來看,惡意欠薪行為被納入犯罪的立法例并不少見。鑒于惡意欠薪行為與詐騙罪、侵占罪之間存在者本質的不同,有必要單獨設置“惡意欠薪罪”,具體來說,其既可以由自然人構成,也可以由單位構成。在“惡意欠薪罪”的配刑上,應當主要以財產性和自由刑為刑種,這不僅是符合“惡意欠薪罪”的行為特征,也是罪刑均衡的必然要求。
[Abstract]:With China's transition from planned economy to market economy, the process of urbanization is accelerating. Due to the expansion of the scale of the city, a large amount of labor force is urgently needed. At the same time, however, the issue of migrant workers' pay has been hanging over for a long time. Since the 1990s, especially in the field of urban infrastructure, the situation of maliciously unpaid wages has become more serious, which has aroused great concern from all walks of life. In practice, the field of malevolent wages has been expanded, from the early infrastructure to the ordinary service industry, and the number of people hurt by maliciously due to wages is increasing day by day, and violent conflicts caused by malicious unpaid wages occur frequently. It can be said that maliciously underpaid behavior has become one of the most important problems endangering the construction of socialist harmonious society. On this basis, relevant departments and experts, scholars have proposed that malicious wages should be included in the scope of criminal law regulation. For example, in 2010, some NPC deputies thought that the crime of malice on wages should be added to the criminal law. The basic reason why the malicious act of unpaid wages should be regulated as a crime lies in its serious social harmfulness. When the labor law and civil law in our country are unable to deal with the malevolent act of unpaid wages, bringing it into the scope of criminal law regulation is not only the need of carrying out the criminal policy of combining leniency with severity, but also accords with the purpose of building a harmonious society. From the point of view of foreign legislation, it is not uncommon for malicious wages to be included in the legislation of crime. In view of the difference between the nature of the crime of malice in arrears of wages and the crime of fraud, it is necessary to set up the crime of malice in arrears of wages separately. Specifically, it can be made up of both natural persons and units. In the case of "malicious crime of wages", the main punishment should be property and free punishment, which is not only in line with the behavior characteristics of "malicious crime of unpaid wages", but also is an inevitable requirement for the balance of crime and punishment.
【學位授予單位】：南昌大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D924.3
本文編號：2377125
[Abstract]:With China's transition from planned economy to market economy, the process of urbanization is accelerating. Due to the expansion of the scale of the city, a large amount of labor force is urgently needed. At the same time, however, the issue of migrant workers' pay has been hanging over for a long time. Since the 1990s, especially in the field of urban infrastructure, the situation of maliciously unpaid wages has become more serious, which has aroused great concern from all walks of life. In practice, the field of malevolent wages has been expanded, from the early infrastructure to the ordinary service industry, and the number of people hurt by maliciously due to wages is increasing day by day, and violent conflicts caused by malicious unpaid wages occur frequently. It can be said that maliciously underpaid behavior has become one of the most important problems endangering the construction of socialist harmonious society. On this basis, relevant departments and experts, scholars have proposed that malicious wages should be included in the scope of criminal law regulation. For example, in 2010, some NPC deputies thought that the crime of malice on wages should be added to the criminal law. The basic reason why the malicious act of unpaid wages should be regulated as a crime lies in its serious social harmfulness. When the labor law and civil law in our country are unable to deal with the malevolent act of unpaid wages, bringing it into the scope of criminal law regulation is not only the need of carrying out the criminal policy of combining leniency with severity, but also accords with the purpose of building a harmonious society. From the point of view of foreign legislation, it is not uncommon for malicious wages to be included in the legislation of crime. In view of the difference between the nature of the crime of malice in arrears of wages and the crime of fraud, it is necessary to set up the crime of malice in arrears of wages separately. Specifically, it can be made up of both natural persons and units. In the case of "malicious crime of wages", the main punishment should be property and free punishment, which is not only in line with the behavior characteristics of "malicious crime of unpaid wages", but also is an inevitable requirement for the balance of crime and punishment.
【學位授予單位】：南昌大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D924.3
【引證文獻】
相關期刊論文 前2條
1 賈會穎;;從拒不支付勞動報酬罪談對勞動者的立法保護[J];法制博覽(中旬刊);2013年02期
2 康均心;吳鳳;;對《刑法修正案(八)》新增的“拒不支付勞動報酬罪”若干問題探討[J];時代法學;2011年05期
相關碩士學位論文 前6條
1 石金山;拒不支付勞動報酬罪研究[D];吉林大學;2012年
2 丁留長;論拒不支付勞動報酬罪[D];廣西民族大學;2012年
3 張家宇;論惡意欠薪可以不必獨立設罪[D];南昌大學;2012年
4 劉斌;我國惡意欠薪行為刑法規(guī)制問題研究[D];天津師范大學;2012年
5 童娣;拒不支付勞動報酬罪研究[D];四川師范大學;2012年
6 劉博洋;拒不支付勞動報酬罪案研究[D];黑龍江大學;2013年
，本文編號：2377125
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