我国限制出境措施问题研究

Research into Issues over Exit Restriction Measures in China

限制出境,是出于维护国家安全和利益、保证诉讼顺利进行、维持社会公共秩序等需要,在特定情况下,要求公民在一定时间内不准出境的措施。根据不同渊源,我国限制出境措施的法律性质应当分别为刑事强制措施、保障性民事执行措施和具体行政行为。我国限制出境措施的法律渊源混乱多元,对公民权利保障不力,应当将所有关于限制出境措施的法律规范统一到专门法律中,并修改或者删除限制出境措施的相关条款。我国限制出境专门法应明确司法机关在适用限制出境措施时,必须坚持比例原则,明确适用机关的告知义务和告知程序、根据适用对象进行区别对待、严格限缩民事司法类限制出境措施的适用,应当建立我国限制出境措施的救济程序和监督程序,明确救济渠道和救济主体、错误适用限制出境措施给公民造成损害的,应当纳入国家赔偿范围。

The exit restriction measures require a citizen not to leave the country within a period of time under special circumstance in order to protect the state safety and interest, ensure successful proceedings and maintain social and public orders. The legal nature of exit restriction measures in China shall be categorized as a criminal compulsory measure, a civil enforcement supporting measure and a concrete administrative act according to different sources. The legal sources of exit restriction measures of China are multiply disordered and lack of strong protection of citizens＇ rights, all legal rules concerning the exit restriction measures shall be consolidated into a single law by amending or deleting relevant provisions on exit restriction measures. It shall be specified in such single law of China on exit restriction measures that the judicial organ, when applying exit restriction measures, must insist on the principle of proportionality, make clear its duty of disclosure and procedure of disclosure, deal with objects differently on their merits and strictly limit the application of civil measures of exist restriction in judicial practice. The remedy procedure and supervision procedure on exit restriction measures shall be established in China to make clear the remedy channel and authority. The injury to citizens due to wrongful application of exit restriction measures shall be included into the scope of state compensation.