未决羁押者的劳动权保护:一个宪政维度的分析

在我国刑事诉讼实践中,未决羁押者被强迫劳动、超强度超时间劳动以及克扣劳动报酬等现象较为普遍,有些地方还相当严重.从宪政维度分析,劳动是未决羁押者的权利而非强制性义务；未决羁押者的劳动权是宪法意义上的劳动权而非劳动法意义上的劳动权利；未决羁押者的劳动权既不同于普通社会劳动者,也有别于已被定罪的囚犯,具有相当的特殊性.应当采取有效措施,完善未决羁押者的劳动权保护制度,以提升其整体的权利保障水平.

The Protection of Right to Work of the Incarcerated with Pending Trials

In respect of China＇s criminal procedural law practices, the phenomena such as coerced work, overstretching work but discounted remunerations upon those ineareerated with pending trials are very common, in some places even seri- ous. From the constitutional perspective, working is a fight but not a coercive obligation for those incarcerated with pending trials, and for whom the right to work is a working right in the constitutional sense, not in the sense of labor law. Their right to work, unlike those general worker＇ s, neither like those criminals, is comparatively unique. Something should be done 1o adopt effective measures in order to improve those legal institutions of the right, and to improve the overall level of their right protection.