Papers Category:Legal Papers
- Judicial System Papers
Post Time:2014/2/24 10:07:00
Abstracts produced in the 1950s through-labor system needed radical change in response to the profound changes in society.
Social changes is the logical starting point of re-education through labor system changes, adhere to the rule of law, humanitarian, educational appliance principle and the principle of cultural violations Education and Correction of system design, its positioning as a judicial compulsory education rehabilitation measures, Suitable for the legalization of Education and Correction of the applicable procedures of judicial and execution mode.
Paper Keywords reeducation through labor education correction of judicial
Hui Tang, events, of Ren Jianyu events exposed by the media, reform of the reeducation through labor system and violations Education and Correction of legislation once again become the focus of public opinion. National political and legal work conference held on January 7, 2013, meeting clearly political and legal work focus on promoting the 'four reform, including reform of the reeducation through labor system. Reeducation through labor at the National People's Congress approved stop using this system defects positive response, a direct result of changes in China's criminal governance philosophy. But walk on the edge of the criminal offense how to effectively control the problem does not disappear because of reeducation through labor system disabled. Since there is a problem, then you need to address, which derived from the path selection problem - is to use the existing system resources, or the design of a new system to meet this demand? This paper argues that through the development the violations Education and Correction of 'education system correction system of the rule of law is relatively rational and realistic option.
A system of re-education through labor on the basis of change
Throughout the system of re-education through labor, the history of the development and changes, can be found in the change of the legal system is based on the design of history and reality. Reeducation through labor system, which also implies a deeper meaning, it is to some extent a reflection of the process of modernization of Chinese society and the change of social attitudes. Analysis from the perspective of social structure, China is discrete dual society to civil society and political state by the traditional political and social structural changes. An element of social structure is characterized by complete coincidence of the political state and civil society, social highly political, legal, its orientation to the national standard, emphasizing social control, As for this control is reasonable, whether it is conducive to the progress of society and the individual is not in the priority Consider the scope. Dual social structure is characterized by civil society and political separation of national, social groups, the individual's right to demand priority recognition and protection of the law. The legal system is based on a community-based, maintenance and reflect a period of social structure. Through-labor system can be regarded as a specimen, it appears, development, change deeply reflect such changes in the social structure. Or a particular social background gave birth to such a system, and social changes in the structure of this system also determines the ultimate fate.
From the perspective of legal culture, China's traditional legal culture the Ethics of type of legal culture, rooted in the soil of natural economic patriarchal society organizations, religious ethics 'gift' penetration in national law, from the first gods based to family based to the national standard, from the National Standard to the country - family-based, to the countries - social standard. However, due to the evolution of the overall social transformation so that the existing social structure, the core of this transmutation is the changes in social values. Our collective standard 'legal concept with the process of the production of the improvement and modernization of the social level, and gradually move closer to the two-way standard, the rights of individuals gradually by the attention and protection of the law, and must not be achieved at the expense of crime control at the expense of the rights of individuals . It can be said, on the relationship between crime control and protection of human rights, labor re-education embodied the traditional Chinese legal culture in the country - the social standard, pay more attention to the protection of the interests of the community, emphasizing punishment and prevention of crimes, ignored the protection of individual rights. Reeducation through labor system legitimate and reasonable in the context of legal values change gradually emerges, especially in some of the cases in recent years, through media exposure is the re-education through labor system placed in an awkward position. 'The society is not based on law, it is the fantasy of the jurists. Conversely, the law should be community based approach.' Stop using the system of re-education through labor can be considered as the best footnote for this view.
Violations Education and Correction system design principles
In order to avoid the 'medication' or 'new bottle old wine', illegal acts Education and Correction system must not be the original through-labor system through legislative means to be legalized, the system must be designed to reflect the following principles:
(A) the principle of the rule of law
The system of re-education through labor is a reflection of the process of building the rule of law in China as a specimen, in the context of building a socialist country ruled by law, the rule of law is the first to adhere to the basic principles in the design of the system also must meet the minimum target. The so-called rule of law is not passed legislation to achieve the legalization of the significance of the system in the form, but to examine the question of the legitimacy of the system to the requirements of the rule of law. System must be designed to follow the principle of legality, necessity principles and the principle of proportionality, which is the field of public law 'gold terms.
(B) humanitarian principles
Humanitarian Legislation and Application of Education and Correction system should be based on human nature, consistent with human nature, can be summed up in the following points: To care for and improve the material life of correctional staff to meet their biological needs; to respect the correctional staff personality to meet their social needs, correctional officers as human beings have the same dignity of personality, is inhumane to treat any non-human for correctional officers; personality focus on the improvement of the penitentiary staff in the management of the education process to fulfill its role as the person the value of which is a special kind of humanitarian requirements, the highest level of humanitarian requirements.
(C) Education and Correction principle To determine the Education and Correction system functional orientation is not a disciplinary or row of harm, but the rescue and protection.
The purpose of the Education and Correction can be achieved through the establishment of special relations management and facilities at the various arrangements in case of measures. This requires respect for the personality of the correctional staff, to protect their basic rights and interests, try to eliminate the negative impact of personality restricted free state, the Education and Correction to adapt to normal social life as soon as possible. Education and Correction of the core concept of education, and rehabilitation services. Education and Correction modes include treatment of both rehabilitation and resocialization.
(D) the principle of cultural
Reconstruction of reeducation through labor system should be consistent with the type of legal culture in China, in particular, should reflect the social transition of law culture change and the compatibility of the legal system, '. This requires that we must have in the system design process innovation as well as inheritance, it is a process of cultural integration. Inheritance demand in line with China's national conditions, the correct treatment the best ingredients in the traditional legal culture and reflected in the legal system, handed down; innovation required to comply with the spirit of the times, in the legal system, 'under the compatibility features draw on it the law of the State Culture essence, and the organic unity of the legal culture together as one. Reposted elsewhere in the Research Papers Download http://eng.hi138.com
Third, violations Education and Correction of system design
(A) the legal status of Education and Correction positioning system of violations have been different views. For example: a quasi-judicial mode advocate position for administrative measures with a mandatory educational nature, although this model has inherited the administrative efficiency of the system of re-education through labor, but does not touch the deep systemic substantive rationality. Judicial patterns of the advocates of this system into the criminal orbit of the rule of law, the Security Measures. Judging from the Security Measures Legislation of the world, whether it is to adopt a system of legislative mode, or take the dual system of legislative mode, security actions are as a complementary or alternative penalty is included in the scope of criminal sanctions. Security Measures intended mainly refers to the danger to society of mental patients, addiction and certain infectious diseases, and this is very different from the current detention system for object. This paper argues that the violations Education and Correction system can be characterized as judicial or judicial compulsory education rehabilitation measures. Such measures outside the law system of sanctions, as a preventive measure into delinquency prevention system.
(B) adjust the object
'Re-education through labor is a basket, anything can be installed inside the visual representation of the chaotic state of re-education through labor is intended. Recommended that the current re-education through labor reeducation, detention centers, forced isolation detoxification system intended to sort out the basis, in accordance with the principle of legality of the sanctions for violations Education and Correction system to make clear that the adjustment object. The excluded excluded, such as the petitioners, the admission of the housing, and a clear legal standard. The recommendations apply to the following types of objects: one is a serious offense, endanger public security and incorrigible and does not constitute a crime. These people has been described as 'Dafa do not make mistakes continue, difficult death police, mad Court'. The government for rehabilitation of such objects must be set to violations of the restrictive terms of the number of type; Second, the implementation of the acts prohibited by the criminal law, but not criminally responsible minors, which is now under the Penal Code object. The also acts constitute a serious crime, but did not reach the juvenile corresponding legal age of responsibility, mainly referring to minor for reeducation staff. China's 'Criminal Law' provisions under the age of 14 ,14-16-year-old is not criminally responsible only for particularly serious offenses of criminal responsibility. Under the age of 16 are not criminal punishment, order the parent or guardian to discipline when necessary, but also by the government for rehabilitation. This reflects the protection of minors, but must be on what is 'necessary' to make clear rules and the decision to be made by the court; addiction and the implementation of more serious criminal violations and the presence of implementation dangerous. Addiction including taking alcoholic beverages or other anesthetics. The proposed mandatory quarantine treatment the right to decide the same to the court, the implementation of the uniform to the judicial and administrative authorities; prostitution prostitution. The proposal to abolish the reeducation of the public security, but the acts of prostitution should be treated differently, not all of a penalty trouble. The Taiwan criminal law compulsory treatment provisions of the action, knowing that they have a venereal disease or leprosy conceal indecent behavior or adultery, and others, so that transmission to others, an order to enter certain premises compulsory treatment.
(C) the applicable procedural issues
November 8, 2011, according to the Supreme People's Court and other ministries on the issuance of 'violations Education and Correction Committee pilot program of work', the pilot period of one year. This approach view: national legislation is difficult to break the ice, through the local pilot to repair bill of the accumulation of empirical experience to dispel the concerns of the opponents, can be considered pragmatic and secure road of reform. But the crux of the problem is that as a labor education system alternatives how to not only be included in the orbit of the rule of law, but also to get rid of reeducation through labor 'Itself self-examination from the sentence from the enforcement' of the state. If only the 'reeducation through labor' is replaced by 'violations Education and Correction of the new term in the program design still clinging to the past, it will still' wearing new shoes, take the old road 'new wine in old bottles, destined to be difficult to get public support. Therefore, for violations Education and Correction System and Administration of Justice is an unbreakable bottom line, the Education and Correction of the decision to the People's Court, not only must also feasible. Compared to administrative procedures, the judicial process is more reasonable in terms of system design, strict and fair, more conducive to the protection of civil rights and freedoms, but the judicial process is far less than in the control and processing of illegal and criminal, administrative procedures as high-speed fast . So, in the context of China's security situation is still very grim, the crime rate is growing up very limited judicial resources, and strengthen the protection of the rights is not conducive to crack down on crime, or influence the effect of the strike, leading to social order out of control, affecting the social order and stability ? In fact, the legal concept under the influence of the 'one-way standard evolution to the' two-way standard 'mode, the pursuit of a unified legal procedures to achieve the dual purpose of crime control and protection of human rights, has become the world legal system development and improvement of the common goal of . Unilateral emphasis on crime control, while ignoring the protection of human rights, is bound to be interested in the image of the country's political cause adverse effects.
(D) execution mode
Reeducation through labor sentence execution mode convergence issue has been the subject of criticism, 'reform through labor' that is a very vivid description of this state of affairs, Education and Correction system in the execution mode design should pay attention to reflect the characteristics of the system and core values, avoid a relapse into The stereotype of 'reform through labor'. First, the implementation should reflect the legislative intent of the education and correction, to promote the upbringing return to society as the fundamental purpose; Secondly, innovative management models, empirical mode from 'closing down, keep things under control, not run, a good transformation' to the classification and grading the specialization paradigm shift. This requires at the case is no longer only consider the behavior of restraint and control, but more concerned about the realization of the rights of the perpetrator and re-socialization. Great importance to scientific treatment standard design as well as at the scientific assessment methodologies and tools in the case of process. And actively explore the try new case mode, Education and Correction institutions to miniaturization, socialization, as far as possible to avoid the negative impact of the 'prison' of educated personnel; Finally, the innovation of teaching methods, to change the past labor camp during the execution of education in fact the at additional awkward position. Correction of the concept of modern education should be established, innovative education system, optimize educational resources. Means of innovation as a breakthrough to enhance the work of Education and Correction individual, scientific and social. Reposted elsewhere in the Research Papers Download http://eng.hi138.com