劳动教养司法化的路径探析——以台湾地区、澳门特区的保安处分为借鉴

Analysis on the Path of Judicialization of the System of Education Through Labor——Reference in Taiwan and Macao Security Measure

劳动教养制度作为中国特有的一种司法行政制度,在其走过的半个世纪风雨历程里,以"教育人、感化人、挽救人"为宗旨,不仅打击、教育、挽救了大批失足者,也在控制、预防犯罪及维护社会治安方面发挥了重要作用。但是随着中国法制化进程的推进,特别是对人权、程序正义和公正问题的日益重视和加强,劳动教养制度暴露出种种缺陷和弊端,特别是在适用程序过程中公安机关集调查、审批、复议于一身,权力无限膨胀,这严重背离了控审分离的法治理念。可以借鉴域外及中国台湾地区、澳门特区的保安处分制度,改革中国大陆劳动教养审批程序。通过制度性设计,把劳动教养活动的关键阶段纳入司法权的控制中,把劳动教养活动全面纳入法律程序。将劳动教养权力重新分配,由公安机关和法院分别行使,实现权力的分立和制衡,从而实现劳动教养程序公正和实体公正的目标,以最终保障人权。

The system of education through labor as a unique part of China＇s judicial administrative re- gime has existed for over half a century. Abiding by the ideal of educating, persuading and redeeming, the system of education through labor has not only cracked down, educated and redeemed a large number of of- fenders, but also played an important role in controlling and preventing crimes as well as maintaining public security. However, with our eountryg promotion of the legalization process, especially the growing emphasis on human rights and procedural justice and fairness, education through labor system has exposed some kinds of defects. Particularly, during the procedure of application, public security institutions have been provided with integral functions to process investigation, approval and reconsideration, which leads to its unrestrained expan- sion in powers and this is a serious departure from the legal idea of the separation of prosecution and trial. Therefore, on the basis of learning from foreign and Taiwan and Macao Security measure system, a discussion on mainlandg judicial approval of education through labor is of considerable value. Through institutional de- sign, the crucial part of education through labor shall be controlled by the judiciary power, and the system of education through labor shall be completely incorporated into legal procedure. The power of education through labor shall be relocated to be respectively executed by public security institutions and the court. With the a- bove relocation, the separation and balance between different powers could be realized, the goal of substantive justice and procedural justice of the system of education through labor may be realized to safeguard the human rights in the end.