論勞動教養(yǎng)刑事化
發(fā)布時間：2018-11-14 09:59
【摘要】： 勞動教養(yǎng)制度自五十年代產(chǎn)生以來，在維護我國社會治安、預(yù)防犯罪方面發(fā)揮了很大的作用。但隨社會發(fā)展，其弊端日漸顯露，勞動教養(yǎng)制度改革成為當前的一個熱點、難點問題，研究它有重要的實踐意義。 正文由三部分組成。 第一部分：勞動教養(yǎng)概述篇 概述了勞動教養(yǎng)制度產(chǎn)生的歷史及發(fā)展的歷程，以及現(xiàn)行勞動教養(yǎng)適用的對象和適用程序。 第二部分：勞動教養(yǎng)性質(zhì)辨析篇 介紹當前有關(guān)勞動教養(yǎng)性質(zhì)的觀點，包括行政強制措施說，行政處罰說，刑事處罰說，保安處分說，教養(yǎng)處遇說。通過對這幾種觀點的辨析，指出各種觀點存在的不足，著重辨析了保安處分與勞動教養(yǎng)的區(qū)別。本文認為，目前的勞動教養(yǎng)制度既具有刑事處罰的性質(zhì)，又具有行政處罰的性質(zhì)。只有通過改革，才能使勞動教養(yǎng)具有明確的性質(zhì)和法律地位。 第三部分：勞動教養(yǎng)改革完善篇 明確指出勞動教養(yǎng)具有存置的必要性，但是因為它的確存在很多缺陷，所以，改革勞動教養(yǎng)制度是必由之路。通過分析當前有關(guān)勞動教養(yǎng)制度改革設(shè)想的三種模式(單獨立法、易名立法、吸收立法)，得出結(jié)論：目前，單獨立法條件不成熟，倉促設(shè)立一部勞動教養(yǎng)法只會令勞動教養(yǎng)再次陷入沒有明確法律性質(zhì)和法律地位的尷尬境地。我國勞動教養(yǎng)與西方保安處分具有很大的區(qū)別，易名立法行不通。吸收立法是可行的，即可以將勞動教養(yǎng)納入刑法的軌道，而且一定要在刑法里找到它最合適的位置。既而提出自己有關(guān)勞動教養(yǎng)刑法化的構(gòu)想：我國現(xiàn)行刑罰體系完整，結(jié)構(gòu)合理，如果將勞動教養(yǎng) 作為刑罰方法，會破壞現(xiàn)有的刑罰結(jié)構(gòu)的完整性，最好是作為一種非刑罰方 法納入刑罰典。本文最后論述了勞動教養(yǎng)作為非刑罰方法在適用對象、適用 程序、執(zhí)行方式等方面區(qū)別于主刑的舉措。 為了淡化犯罪給曾經(jīng)犯罪人帶來的消極影響，使曾經(jīng)犯罪人能夠更好 地復(fù)歸社會，我國刑法中有必要引入前科消滅制度。 結(jié)論 勞動教養(yǎng)歷經(jīng)近五十年的風雨，在歷史上發(fā)揮了自己的作用， 納入刑法后，，消除它的消極因素，使勞動教養(yǎng)發(fā)揮更大的作用。
[Abstract]:The system of reeducation through labor has played an important role in maintaining public order and preventing crime since its birth in 1950's. However, with the development of society, its malpractice is becoming more and more obvious, and the reform of re-education through labor system has become a hot and difficult issue, so it is of great practical significance to study it. The text consists of three parts. The first part summarizes the history and development of the system of reeducation through labor, as well as the applicable object and procedure of reeducation through labor. The second part: an analysis of the nature of reeducation through labor, including administrative coercive measures, administrative penalties, criminal penalties, security measures, and correctional departments. Based on the analysis of these viewpoints, this paper points out the shortcomings of these viewpoints, and analyzes the differences between security measures and reeducation through labor. This paper holds that the present system of reeducation through labor has the nature of both criminal punishment and administrative punishment. Only through reform, can reeducation through labor have a clear nature and legal status. The third part: the perfection of the reform of re-education through labor clearly points out the necessity of reeducation through labor, but because it does have many defects, the reform of the system of re-education through labor is the only way. Based on the analysis of the three models (separate legislation, renamed legislation, absorption legislation) of the current reform of the re-education through labor system, it is concluded that, at present, the conditions for separate legislation are not mature. The hasty establishment of a reeducation through labor law will only lead to the embarrassing situation of no clear legal nature and legal status. There is a great difference between reeducation through labor and security measures in western countries. It is feasible to absorb legislation, that is, to bring re-education through labor into the track of criminal law, and must find its most suitable position in criminal law. Therefore, the author puts forward his own conception about the criminal law of reeducation through labor: the present penalty system of our country is complete, the structure is reasonable, if we take reeducation through labor as the penalty method, It would undermine the integrity of the existing penal structure, preferably as a non-penal party to the penal code. In the end, the paper discusses that reeducation through labor as a non-penalty method is different from the main punishment in terms of applicable object, applicable procedure, execution mode and so on. In order to desalinate the negative influence of the crime on the former offenders and enable the former criminals to return to the society better, it is necessary to introduce the system of elimination of criminal record in the criminal law of our country. Conclusion after nearly 50 years of wind and rain, reeducation through labor has played its own role in history. After it was brought into criminal law, it eliminated its negative factors and made the reeducation through labor play a greater role.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2002
【分類號】：D926.8
本文編號：2330843
[Abstract]:The system of reeducation through labor has played an important role in maintaining public order and preventing crime since its birth in 1950's. However, with the development of society, its malpractice is becoming more and more obvious, and the reform of re-education through labor system has become a hot and difficult issue, so it is of great practical significance to study it. The text consists of three parts. The first part summarizes the history and development of the system of reeducation through labor, as well as the applicable object and procedure of reeducation through labor. The second part: an analysis of the nature of reeducation through labor, including administrative coercive measures, administrative penalties, criminal penalties, security measures, and correctional departments. Based on the analysis of these viewpoints, this paper points out the shortcomings of these viewpoints, and analyzes the differences between security measures and reeducation through labor. This paper holds that the present system of reeducation through labor has the nature of both criminal punishment and administrative punishment. Only through reform, can reeducation through labor have a clear nature and legal status. The third part: the perfection of the reform of re-education through labor clearly points out the necessity of reeducation through labor, but because it does have many defects, the reform of the system of re-education through labor is the only way. Based on the analysis of the three models (separate legislation, renamed legislation, absorption legislation) of the current reform of the re-education through labor system, it is concluded that, at present, the conditions for separate legislation are not mature. The hasty establishment of a reeducation through labor law will only lead to the embarrassing situation of no clear legal nature and legal status. There is a great difference between reeducation through labor and security measures in western countries. It is feasible to absorb legislation, that is, to bring re-education through labor into the track of criminal law, and must find its most suitable position in criminal law. Therefore, the author puts forward his own conception about the criminal law of reeducation through labor: the present penalty system of our country is complete, the structure is reasonable, if we take reeducation through labor as the penalty method, It would undermine the integrity of the existing penal structure, preferably as a non-penal party to the penal code. In the end, the paper discusses that reeducation through labor as a non-penalty method is different from the main punishment in terms of applicable object, applicable procedure, execution mode and so on. In order to desalinate the negative influence of the crime on the former offenders and enable the former criminals to return to the society better, it is necessary to introduce the system of elimination of criminal record in the criminal law of our country. Conclusion after nearly 50 years of wind and rain, reeducation through labor has played its own role in history. After it was brought into criminal law, it eliminated its negative factors and made the reeducation through labor play a greater role.
【學(xué)位授予單位】：中國政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2002
【分類號】：D926.8
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