关于废止劳动教养制度的可行性研究

劳动教养制度是我国的独创。其四十多年的存在有其历史的合理性。但随着我国政治、经济等方面发生的巨大变化 ,劳动教养这一行政强制措施 ,也已逐步演变成为一种与对罪犯进行强制劳动改造相提并论的法律制裁手段。在其演变过程中 ,有关劳动教养问题的规范性文件不断出台 ,并出现了与法律相抵触和在执行过程中被人为扭曲的现象。本文从这一制度的立法性质、法律冲突、量罚幅度、救济程序和适用局限等五个方面 ,论述了该制度违法性 ,进而从适应我国政治、经济形势的变化和国际人权斗争形势的需要的角度 ,提出废止这一制度的必要性和可能性。同时 ,文章又对这一制度存在的体制原因做了初步探析 ,还对这一制度废止后 ,如何从立法上做出相应的补救措施 ,以增强公安机关战斗力 ,维护社会稳定 ,提出利用现有的刑罚资源 ,修改《治安管理处罚条例》有关条款的立法建议。

A Feasibility Study about Abolishing the System of Reeducation through Labor

The system of reeducation through labor is created in China. It has its rational existence for more than 40 years. However, as great changes have taken place in Chinese political and economic fields, the administrative compulsory measure of reeducation through labor has evolved into a legal means of sanction placed on the same par with criminals' forced labor reform. During the process of its evolution, normative documents about the problem of reeducation through labor have been issued now and then. As a result, there appeared phenomena of reeducation through labor contravening the law and law enforcement officials misrepresenting its original intention. This article points out that the system of reeducation through labor violates the law from five aspects: nature of legislation, contravention of law, measurement of penalty, the process of relief and the limitation of application. Furthermore, the article suggests that it is necessary and feasible to abolish the system to cater to the needs of Chinese political and economic changes and the circumstances of international human rights development. Meanwhile, the article makes the initial analysis of the existence of the system. Finally, to maintain social stability and strengthen the combat effectiveness of public security agency, the article makes some suggestions on how to take the legislative remedial measures, how to make use of the available penalty resources, and how to amend the relative clauses of Security Administration Punishment Act after the abolishment of the system.