【作者】 沈强；

【导师】 张旭；

【作者基本信息】 吉林大学 ， 法律， 2007， 硕士

【摘要】 1987年,劳动教养立法就列入我国的“七五”立法规划,1991年和1995年又分别被列入我国的“八五”立法规划和“九五”立法规划。但劳动教养立法20年的实践已经证明,劳动教养立法最为缺乏的是有力的理论支撑。作者结合自己多年在基层从事劳动教养管理工作的实践经验,对我国劳动教养制度的若干问题进行了探讨。文章对我国劳动教养制度的历史回溯;分析了劳动教养制度存在的合理性;也从实体法和程序法两个方面探讨了劳动教养制度的缺陷;并重点论述了劳动教养制度改革的前瞻性问题,强调了劳动教养法治化过程中的价值取向问题、非刑罚化、司法化、一体化以及完善回归社会的保障机制。笔者希望通过立法来进一步明确劳动教养的相关规范,增强在实践中的可操作性,使劳动教养这一具有中国特色的法律制度更加趋于完善、科学。更多还原

【Abstract】 Starting from stabilizing politics to meeting the needs of public security, reeducation system of our own characteristic has passed more than 50 years. Long time practice has proved that the system has its value basis to exist. While because of careless omission in legislate stipulation, especially lack in procedure norm, there still exist many problems in the implementation of reeducation system through labor, whose legality, reasonability and validity have been questioning continuously.We have developing legislation work of reeducation through labor for about 20 years, but until now it is still not passed. Seeing from the surface, during the draft of reeducation through lab law, the main and most troublesome problem ever met is the distribution and coordination of power and benefit among relevant departments. However, it is in nature the lack of scientific theory of reeducation through labor legislation to be based and guided. This article tries to explore some reform subjects of reeducation system through labor by the research and analysis on reeducation through labor in the hope of make the law system of reeducation through labor with Chinese own characteristic more consummate and scientific.This article is divided into four sections in all.The first section is to retrospect reeducation system through labor in our country. From that we could see that the uncertainty of reeducation system through labor in nature has its own historical and realistic reason. At its birth, the nature is definite. That is it has two natures as compulsive education and reformation and arranging employment. After that, social employment pressure will become increase, thus reeducation through labor has lost it nature of arranging employment. Under the need of public security, reeducation through labor is gradually regarded as a mean to punish crimes.The second section is the analysis on reasonability of reeducation system through labor in our country. During 50 years when reeducation system through labor has been implemented, more than 300 million criminals with various kinds of illegal crimes and complying with conditions of reeducation through labor have been educated and reformed, which has made an outstanding service on the prevention of crimes and maintaining social order. Its reasonability shows: it has reasonability on maintaining social order; it will make up structure lack of criminal law in our country and tighten the need of criminal law; reeducation through labor is an important defense mean; the natural goal of reeducation through labor has its validity in nature.The third section has analyzed defects existing in the reeducation system through labor in our country from the aspect of entity law and procedure law in detail. Although the present reeducation system through labor has played an important role in maintaining social public security, stabilizing social order, preventing and decreasing crimes, educating and saving criminals with light crimes, it is now gradually showing problems and corrupt practice not corresponding to some modern lawful rules and social development. From public law point of view, reeducation through labor deviates“legal principle”,“pro rata principle”and“form justice principle”which must be followed at the time when public authority expropriates person right. On the other hand, reeducation through labor will also deviate from procedure lawful rule principle of“right and freedom of anyone without public and fair trial hearing should not be deprived”. In aspect of applicable procedure of reeducation through labor, innocence understanding, open trial and debate system could not be implemented, and even those reeducated will be deprived of their chance of trial hearing by neutral judicial authority, to say nothing of effective judicial rescue afterwards. Therefore, reformation of reeducation through labor is quite urgent.The fourth section has provided forward-looking thoughts for reformation of reeducation through labor in our country. This is the stressing point in this article. First, value orientation in reeducation lawful rule should be made definite. Personal right and freedom value of civil citizen should be put in the first rank, emphasizing“human standard”legal sense of worth of“regarding human as the standard”, giving prominence to fairness which is prior to utility, further weakening social control and reinforcing right protection. Second, it has proved that reeducation through labor in our country is not a punishment avoiding expansion of crimes. The necessity of reeducation through labor is mainly shown in the rise of non punishment all through the world, complying with principle of economical execution caused by corrupt practice of short term free punishment and determined by the limitations of punishment functions and conflict of punishment system in our country; feasibility of non punishment of reeducation through labor is mainly lies in the sameness between applicable conditions of reeducation through labor in our country and the one of on punishment method, besides the above, applicable objects of non punishment method in foreign legislation and the one in reeducation through labor of our country also have some similarities. Once again, unbreakable deadline in the legislation of reeducation through labor—judicature should be made definite. One should clearly and definitely transform determination by executive authority into determination by judicial authority and establish judicial principle and implement more convenient way of case handling and trying. The fourth, relevant system and countermeasures should be solved together in legislation. Present systems as reeducation through labor, penitentiary education, penitentiary cultivation and compulsive rehabilitation should be simplified and fitted into on system. By utilizing reeducation system through labor having formed some kind of scale, mechanism management should be unified and present execution and management way should be changed, which will be made applicable to double needs of crime prevention and right protection. The fifth, improve guarantee mechanism of society return of those reeducated through labor and finally implement and realize natural goal of reeducation through labor—make those reeducated return back to society again.更多还原