| As a kind of Chinese law, Labor Education and Rehabilitation (LER) was made in China at the special times after the People's Republic of China was founded. In the fifties, at the need of treating the enemy elements and the alien elements, LER was severely politicalized. From its developmental period, we can conclude that LER has showed seven features, such as its legalization gradually replacing its politicalization, its coverage of application enlarged gradually. During the past forty years and more, LER has educated and rehabilitated three million lawbreakers and criminals and more, and has enormously acted on both protecting law and order of society and preventing crime. Following our country reforms carried out and opening-up policy adopted, socialist market economy increasingly developing, and international human right opinions conveyed, our country s politics, economy, society and culture have changed greatly. As a result, LET s feature of anti-lawfulness and anti-rightfulness has increasingly exposed. In the perspective of constitution, the constitutional base of LER is about the civil obligation. Following the development of society, politics, and economy, the construction of our society has gradually changed from the past political society to the political, civil society correspondingly, and the relationship between government and citizen has changed correspondingly. As a result, the lawfulness of government depriving citizen of freedom is doubted. In the perspective of administrative law, the proclaiming and applying of the law of administrative punishment and the law of regulation, caused the danger of LER at lawfulness. Deeply, LER has rebelled the procedural principle of law and order that anyone can t be deprived of right and freedom without open, rightful trying, and its content has ignored and invaded the right of a man punished by LER, has been rocking the mass's beliefs of judicial right. And it shows the anti-lawfulness and anti-rightfulness of LER. In the perspective of penal law, to guard society, LER apply punishment that is more severe than some penalty to lawbreakers who don t break the criminal law, that further shows the anti-lawfulness and anti-rightfulness of LER.In the face of anti-lawfulness and anti-righfultness of LER, we must rightly evaluate the LER. We must pay attention to both itsrational side and its irrational side, and absorb its rational side and abandon its irrational side.Based on the different opinions about the lawfulness and rightful-ness, the argument about the abandonment and existence of LER, is one of the focuses in the law. Summed up, there are three theories, i.e, remaining theory, abolishing theory, and reforming theory. The reforming theory consists of three opinions, i.e, penalization of LER, administrative punishment of LER, and penalization and administrative punishment of LER. The penalization of LER consists of three patterns, i.e, security measures, light criminal law, penalization. The administrative punishment of LER consists of two representative patterns, i.e, reforming the present administrative commission of LER, abolishing the present administrative commission of LER. In all of the theories, the opinion of penalization and administrative punishment of LER, in theory, is based on objective reality, and analyse the object of LER individually, qualitatively, quantitatively, that resolve both the problem of the anti-lawfulness of LER and the problem of the anti-rightfulness of LER. In judicial practice, the opinion of penalization and administrative punishment of LER is practical. There are faults in other opinions.Studying the developmental tendency towards LER, we must pay attention to four supporting theories, i.e, confirming the theory premise that society can t avoid crime, treating rightly the relationship between society existence and society consciousness, resolving rightly the problem of value choice, treating rightly the relationship between government and citizen. Based on the four support the... |
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