论以刑法修正案形式规范劳动教养——侧重于劳动教养制度的实体法完善研究

On Labor Education and Rehabilitation Regulated in the Form of Amendment to Criminal Law——From the Perspective of Substantive Law Perfection of Labor Education and Rehabilitation

以刑法修正案形式规范劳动教养具有可资借鉴性、相对合理性和技术可行性。我国劳动教养是具有保安处分性质的人身强制性预防措施,可以借鉴国外保安处分制度的法理与实践,以契合我国劳动教养法治化的基本需要。关于劳动教养改革,我国学界目前提出的劳动教养完善方案中,劳动教养独善其身的小修方案具有比较突出的相对合理性。《刑法修正案(八)》比较好地完成了作为保安处分措施的刑事禁止令的法规范设置,其为以刑法修正案形式规范我国单项保安处分措施提供了立法经验,而劳动教养无疑可以成为这种立法经验的"第二块试验田",因而我们有充分理由期盼近期制定出台刑法修正案,以有效实现由刑法规范劳动教养制度的设想。新的刑法修正案应当以实体法与程序法内容相结合的规范形式,确立兼具实质合理性与形式合理性的劳动教养法规范体系。

To regulate labor education and rehabilitation in the form of amendment to criminal law is rela- tively reasonable, feasible in technology and can take reference from other jurisdictions. In our country, labor education and rehabilitation is a preventive measure of physical compulsive nature to ensure security. It is sug- gested to take reference from foreign countries of jurisprudence and practice on security measures to satisfy the requirements of the labor education and rehabilitation in our country. With regards to the reform of labor edu- cation and rehabilitation system, scholars have made many proposals among which the plan of minor amend- ment is relative reasonable. The Amendment VIII of the Criminal Law has established criminal injunctions as security measures, and this approach of formulating a particular security measure in the form of amendment to criminal law offers valuable legislative experience. Likewise, labor education and rehabilitation can be the sec- ond experiment for legislation, and it is strongly believed that a new amendment to criminal law on labor edu- cation and rehabilitation will be promulgated. This new amendment should combine substantive and procedural norms on labor education and rehabilitation to ensure both substantial and formal justifiability.