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惩恶功能是一项贯穿于劳动教养制度创立、发展始终的核心功能。在发挥惩恶功能的同时,劳动教养制度本身也存在着脱离法治轨道、游离于司法程序之外的缺陷,这使该制度存在可能导致权力滥用这一致命之“恶”。在对这两种恶进行取舍时,应当看到,深藏在劳动教养制度之中的权力滥用之“恶”是最深层、最根本的“恶”。犯罪概念中定量因素的存在导致我国刑法存在结构性的缺陷。从对刑法边缘行为的惩治来看,现行劳动教养制度仍有其存在的空间。为避免因劳动教养制度本身之恶给社会主义法治带来致命性的破坏,同时解决由于我国刑法结构性的缺陷造成的对刑法边缘行为无法予以处理的问题,应当对现行劳动教养制度进行轻罪化改造。
Punishing evil is a core function that runs through the establishment and development of the system of reeducation through labor. While giving play to the function of punishing evil, the reeducation-through-labor system itself has its own defects from the orbit of the rule of law and freedom from the judicial process, which makes the system a fatal “evil” that may lead to the abuse of power. When choosing between these two kinds of evil, we should see that the “evil” of abuse of power, which is hidden in the system of re-education through labor, is the deepest and most fundamental “evil”. The existence of quantitative factors in the concept of crime led to structural defects in our criminal law. Judging from the punishment of the marginal acts of criminal law, there is still room for the existing system of re-education through labor. In order to avoid causing the deadly destruction to the socialist rule of law due to the evil of the system of re-education through labor and to solve the problem that the marginal behavior of the criminal law can not be handled due to the structural defects of the criminal law in our country, misdemeanors should be misdemeanor to the existing system of re-education through labor. Transformation.