劳教废止后对违法犯罪行为惩治和矫正的法律导向——基于刑法宽容理念的善后与衔接

未经法律授权即可对公民实施包括限制人身自由在内的强制措施,这是劳教制度最大的制度软肋,也是致其最终被废止的根本原因。劳教制度废止后的制度设计应当引以为戒,尽量避免"劳教制度已死,劳教式管理模式还在"的尴尬局面。遵循理念先导、制度跟进的规律,未来的制度设计必先契合法治理念。而于刑事法治理念而言,不遵循刑法宽容理念的制度设计必定依然难逃窠臼。故而在改革中除了要关注基本制度的构建和刑事政策的贯彻之外,更为重要的还在于刑法宽容理念的培养和倡导。

Legal Trends Towards Punishment and Correction of Criminal Offence in Post-Reeducation-Through-Labor Era --Based on the Connection of Criminal Law Tolerance Concept

Without the legal authority to restrict the personal freedom of citizens, including the implementation of coercive measures, which is the largest weakness of the system of reeducation through labor, it is also the root that caused its ultimate abolition. It should be a warning towards the design of Post-Reeducation-Through-Labor Era system, the new system should avoid such embarrass- ing situation like ＂although reeducation through labor system has been superseded, the detention management model is still＂, according to the concept of a pilot system for follow-up, then follow the law, we must first fit the concept of the rule of law. Regarding the concept of rule by criminal law, if criminal law does not follow the concept of tolerance system, the design must escape the rut. Therefore in addition to building and implementing reforms in criminal policy concerns the basic system of criminal law, more important is culturing and advocating the concept of criminal tolerance.