论增设“恶意欠薪罪”的刑法学思考
发布时间：2018-12-13 19:55
【摘要】： 随着我国从计划经济进入市场经济时代,社会的城市化进程不断加快。由于城市规模的扩大,急需大量的劳动力输入。但与此同时,外来务工人员的薪酬问题一直久悬不决。自20世纪90年代以来,尤其是在城市基建领域,恶意欠薪的情况更为严峻,引起了社会各界的高度关注。实践中恶意欠薪发生的领域不断扩大,从早期的基建领域扩大到普通的服务行业,备受恶意欠薪伤害的人群也在日益增加,由恶意欠薪行为所引发的暴力冲突频频发生。可以说,恶意欠薪行为已经成为当前危害社会主义和谐社会建设的重要问题之一。正是在此基础上,相关部门和专家、学者纷纷提议应将恶意欠薪纳入到刑法规制的视野。如在2010年两会上,有的人大代表认为应当在刑法中增设“恶意欠薪罪”。恶意欠薪行为之所以应当被规制为犯罪,其根本原因就在于该行为具有严重的社会危害性。在我国目前的劳动法、民法等无力应对恶意欠薪行为时,将其纳入刑法规制的范围,既是贯彻宽严相济刑事政策的需要,也是符合构建和谐社会的宗旨。从国外立法情况来看,恶意欠薪行为被纳入犯罪的立法例并不少见。鉴于恶意欠薪行为与诈骗罪、侵占罪之间存在者本质的不同,有必要单独设置“恶意欠薪罪”,具体来说,其既可以由自然人构成,也可以由单位构成。在“恶意欠薪罪”的配刑上,应当主要以财产性和自由刑为刑种,这不仅是符合“恶意欠薪罪”的行为特征,也是罪刑均衡的必然要求。
[Abstract]:With China's transition from planned economy to market economy, the process of urbanization is accelerating. Due to the expansion of the scale of the city, a large amount of labor force is urgently needed. At the same time, however, the issue of migrant workers' pay has been hanging over for a long time. Since the 1990s, especially in the field of urban infrastructure, the situation of maliciously unpaid wages has become more serious, which has aroused great concern from all walks of life. In practice, the field of malevolent wages has been expanded, from the early infrastructure to the ordinary service industry, and the number of people hurt by maliciously due to wages is increasing day by day, and violent conflicts caused by malicious unpaid wages occur frequently. It can be said that maliciously underpaid behavior has become one of the most important problems endangering the construction of socialist harmonious society. On this basis, relevant departments and experts, scholars have proposed that malicious wages should be included in the scope of criminal law regulation. For example, in 2010, some NPC deputies thought that the crime of malice on wages should be added to the criminal law. The basic reason why the malicious act of unpaid wages should be regulated as a crime lies in its serious social harmfulness. When the labor law and civil law in our country are unable to deal with the malevolent act of unpaid wages, bringing it into the scope of criminal law regulation is not only the need of carrying out the criminal policy of combining leniency with severity, but also accords with the purpose of building a harmonious society. From the point of view of foreign legislation, it is not uncommon for malicious wages to be included in the legislation of crime. In view of the difference between the nature of the crime of malice in arrears of wages and the crime of fraud, it is necessary to set up the crime of malice in arrears of wages separately. Specifically, it can be made up of both natural persons and units. In the case of "malicious crime of wages", the main punishment should be property and free punishment, which is not only in line with the behavior characteristics of "malicious crime of unpaid wages", but also is an inevitable requirement for the balance of crime and punishment.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D924.3
本文编号：2377125
[Abstract]:With China's transition from planned economy to market economy, the process of urbanization is accelerating. Due to the expansion of the scale of the city, a large amount of labor force is urgently needed. At the same time, however, the issue of migrant workers' pay has been hanging over for a long time. Since the 1990s, especially in the field of urban infrastructure, the situation of maliciously unpaid wages has become more serious, which has aroused great concern from all walks of life. In practice, the field of malevolent wages has been expanded, from the early infrastructure to the ordinary service industry, and the number of people hurt by maliciously due to wages is increasing day by day, and violent conflicts caused by malicious unpaid wages occur frequently. It can be said that maliciously underpaid behavior has become one of the most important problems endangering the construction of socialist harmonious society. On this basis, relevant departments and experts, scholars have proposed that malicious wages should be included in the scope of criminal law regulation. For example, in 2010, some NPC deputies thought that the crime of malice on wages should be added to the criminal law. The basic reason why the malicious act of unpaid wages should be regulated as a crime lies in its serious social harmfulness. When the labor law and civil law in our country are unable to deal with the malevolent act of unpaid wages, bringing it into the scope of criminal law regulation is not only the need of carrying out the criminal policy of combining leniency with severity, but also accords with the purpose of building a harmonious society. From the point of view of foreign legislation, it is not uncommon for malicious wages to be included in the legislation of crime. In view of the difference between the nature of the crime of malice in arrears of wages and the crime of fraud, it is necessary to set up the crime of malice in arrears of wages separately. Specifically, it can be made up of both natural persons and units. In the case of "malicious crime of wages", the main punishment should be property and free punishment, which is not only in line with the behavior characteristics of "malicious crime of unpaid wages", but also is an inevitable requirement for the balance of crime and punishment.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D924.3
【引证文献】
相关期刊论文 前2条
1 贾会颖;;从拒不支付劳动报酬罪谈对劳动者的立法保护[J];法制博览(中旬刊);2013年02期
2 康均心;吴凤;;对《刑法修正案(八)》新增的“拒不支付劳动报酬罪”若干问题探讨[J];时代法学;2011年05期
相关硕士学位论文 前6条
1 石金山;拒不支付劳动报酬罪研究[D];吉林大学;2012年
2 丁留长;论拒不支付劳动报酬罪[D];广西民族大学;2012年
3 张家宇;论恶意欠薪可以不必独立设罪[D];南昌大学;2012年
4 刘斌;我国恶意欠薪行为刑法规制问题研究[D];天津师范大学;2012年
5 童娣;拒不支付劳动报酬罪研究[D];四川师范大学;2012年
6 刘博洋;拒不支付劳动报酬罪案研究[D];黑龙江大学;2013年
，本文编号：2377125
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