중국 노동교양제도 타당성에 관한 법적 검토

Abstract

The Chinese Communist Party have purged the anti-revolutionists since 1955 and have imposed the re-education through labor (or "Laojiao") on those who could not be subject to criminal punishment. In 1957, the State Council laid a legal foundation for the Laojiao system in the form of administrative regulation. During the cultural revolution, the Laojiao system has once been abolished but later has been revived by the Supplementary Rules on the Re-education Through Labor in 1979. The scope of Laojiao has been expanded, and the target areas have also been extended from large- and medium-sized cities to prefecture and rural areas. In 1982, China's Ministry of Public Security issued the Trial Methods for Implementation of Re-education Through Labor, setting forth specific provisions by, for example, specifying "education, influence, and remedy" as a policy for Laojiao. Still, the current Laojiao system has a number of problems to be solved. According to the China's Constitution, any laws, administrative regulations, and local regulations should not be in conflict with the Constitution. Laojiao, however, is clearly in violation of the Constitution. Moreover, Laojiao also violates the International Convention on Human Rights and Political Rights (ICCPR), to which China is a member state. Certain laws such as Legislation Law and the Administrative Punishment Law provide that the rules depriving or restricting personal freedom of a citizen shall be stipulated by 'law.' Laojiao, however, is not based on a law but based on an administrative regulation. Under the Chinese criminal punishment system, public surveillance punishment can be imposed for three months or more up to two years, while detention punishment can be imposed for one month or more up to six months. In contrast, Laojiao can be imposed for one year or more up to four years, thereby having greater punitiveness than criminal punishment. In addition, from the procedural perspective, the public security agencies often abuse their authorities by, for instance, imposing Laojiao in case such agencies face difficulties in collecting the relevant evidence. In conclusion, the legal basis for Laojiao system should be replaced in the form of 'law' as soon as practically possible, and such system should ultimately be abolished in order to help China become a country truly governed by law.