The emergence of vagrants and beggars is an interesting problem in recent years. In order to better manage vagrants and beggars, local governments have successively formulated relevant regulations and adopted some rescue management methods. While these management behaviors are justified, they also face some legal and value dilemmas. The author tries to analyze this problem as a whole, and through the analysis of the history of vagrants and beggars' governance, the reasons of government governance and the value dilemma in current governance, it is concluded that the government should adhere to the principle of rule of law and solve this problem through various efforts.
Vagrants and beggars, government management, freedom of movement, principle of rule of law, civil rights and social security
In 2003, the Administrative Measures for the Relief of Vagrants and Beggars Without Living in Cities was implemented. In order to better implement the relevant laws and regulations, and implement the rescue management of vagrants and beggars, some local laws and regulations have been promulgated in various places. Among them, Beijing took the lead in defining vagrants and beggars as "forbidden", and a new round of action against vagrants and beggars was announced [1]. However, there are also some problems in the actual governance process, which are mainly manifested in some value dilemmas in the government's governance of vagrants and beggars, and there are also some drawbacks in the current government management methods. The author tries to analyze this value dilemma and give corresponding solutions.
First, the value dilemma of the government's governance of vagrants and beggars at this stage.
At present, the government's governance behavior is mainly due to the explosive growth of vagrants and beggars, which has caused a great impact on urban management. Moreover, the relevant measures for the implementation of assistance management are formulated in various places in order to better implement the new Assistance Management Measures of the State Council and the Ministry of Civil Affairs and its detailed rules, better implement the management of urban vagrants and beggars, strengthen social assistance and maintain normal social order. Judging from the relevant regulations issued in various places, the division of labor and appropriate restrictions on vagrants and beggars are more reasonable. In this sense, the government has great legitimacy in formulating relevant laws and regulations, both in procedure and in the content of laws and regulations. Moreover, the detailed regulations on the specific implementation process of rescue management also enable the relevant laws and regulations to be better implemented (for example, the specific rescue methods for different rescue objects in different regions, as well as the division and coordination of relevant departments and personnel). It should be said that if the relevant regulations of various localities are conscientiously implemented, the assistance to urban vagrants and beggars will undoubtedly make substantial and constructive progress.
Unfortunately, in the actual implementation of the regulations, this rationality has changed-that is, there are great differences in the legitimacy of the regulations at the literal level, the actual implied purpose of the regulations and the specific practical level of the regulations, and this difference is largely the reason for the value crisis of vagrants and beggars at this stage.
The author tries to analyze this value dilemma from its implied purpose and practical operation.
(1). Sending vagrants and beggars back to their original places in rescue management is actually an act to prevent vagrants and beggars from flowing freely, and the legitimacy of this act remains to be discussed.
The current Measures for the Administration of Assistance came into effect in 2003, which indicates that the management of vagrants and beggars in China has changed from "detention and repatriation" to "assistance management". From the legislative point of view, the legislative purpose of the Measures for the Administration of Assistance is mainly to provide assistance to vagrants and beggars who have no life in cities, protect their basic rights and interests, and improve social assistance. In terms of specific operation, it has also been greatly improved compared with the original "Measures for Detention and Repatriation". However, it still inherits the temporary and repatriation characteristics of the original Regulations on Vagrants and Beggars. In particular, the characteristic of repatriation involves restricting citizens' freedom of movement, which is a basic constitutional right. Although the current constitution does not explicitly mention "freedom of movement", it can be introduced as a constitutional right according to the principle of civil rights and equality before the law stipulated in the constitution. Moreover, the constitutional practice of various countries also proves that freedom of migration is a basic right given to citizens by the state, which is directly related to citizens' right to subsistence and development. The expulsion of vagrants and beggars from the country undoubtedly hinders citizens' freedom of movement and is naturally unconstitutional. In the process of governing vagrants and beggars, the government can have corresponding norms and restrictions, but such restrictions must be carried out within the framework permitted by the Constitution and laws. Due to the current economic and social constraints in China, it is difficult for the government to properly arrange all vagrants and beggars. However, when the government formulates relevant laws and regulations, it must take into account the rights granted to citizens by the Constitution and the great significance of protecting freedom of movement in unifying a country ruled by law. "The Constitution provides a legal framework for the political unity of the country. Freedom of movement is the inevitable result of political unity, which unites different regions and forms a unified nation. In this sense, freedom of movement is not only an individual right, but also of great significance to national unity. The national constitution must ensure that the national unity embodied in civil rights and freedom of movement will not be divided by various local restrictions. " three
"I can walk freely in my country" is not only a kind of discourse propaganda, but also a manifestation of citizens' recognition of a unified nation-state and a unified constitution. This is the most basic right enjoyed by citizens in a country ruled by law and the minimum responsibility that the government should have. In this sense, even if the local government needs to pay a certain price to realize this right, if this price is for the unity of the country and the constitution, then this kind of payment is reasonable no matter how much.
(2) The legitimacy of delineating no-begging areas in the implementation of rescue management is open to question.
Judging from the local laws and regulations, most places do not explicitly stipulate that begging is prohibited. However, in practice, it is quite common to restrict vagrants and beggars in behavior or region. The author will analyze the legality of this behavior from three aspects.
1. It is against laws and regulations to prohibit begging areas or restrict legal begging, which is illegal in nature.
Article 45 of the Constitution stipulates: "China people and China citizens have the right to get material help from the state and society in case of old age, illness or incapacity to work." Delineating the forbidden area for begging or restricting vagrants and beggars in behavior is an infringement on the civil rights in this constitutional area, and it is also an obstacle to vagrants and beggars to exercise their constitutional rights. Because a large part of vagrants and beggars are elderly or disabled children and children who are unable to work, it is unconstitutional to restrict them. Paragraph 2 of Article 3 of the Measures for the Administration of Assistance stipulates that "the state encourages and supports social organizations and individuals to help vagrants and beggars", and the government has designated no-begging areas or restricted begging behavior for vagrants and beggars, which obviously does not conform to the legislative spirit of this article and actually hinders the legitimate rights of others to help vagrants and beggars. Third, due to the characteristics of administrative behavior itself, administrative behavior must conform to the principle of legality. In other words, any kind of administrative behavior must be exercised under the circumstances clearly stipulated by law in order to produce legal effect. Because there is no stipulation that begging is prohibited or all legal begging activities are prohibited when formulating the management measures for vagrants and beggars in various places, the restrictive behavior made by the administrative subject is naturally invalid because there is no explicit provision in the law, and its implementation violates the rights of vagrants and beggars because it is invalid.
2. There are legal defects in delineating areas where begging is prohibited or restricting legal begging.
In a country ruled by law that values and guarantees human rights and freedoms, all citizens enjoy their due rights. This right is not limited to legal provisions, but also partly comes from the moral category. The spirit of a country ruled by law gives people reason to believe that any provision restricting citizens' rights may violate the law. When making rules, the government can determine which rights should be protected by law and which rights should be restricted by law according to its own judgment. However, the restriction of civil rights should follow two basic principles: (1), only the individual rights of other social members are rights that can be opposed to the rights enjoyed by citizens. (2) Only the general public interest that will happen, rather than the possible general public interest, is a sufficient reason to block civil rights. Therefore, there are at least two reasons why the government restricts the importation of vagrants and beggars: (1) vagrants and beggars have damaged or threatened the legitimate rights of other members of society; (two) the behavior of vagrants and beggars has endangered public safety or social public interests. In fact, so far, the government has no sufficient reason to prove that the begging behavior of vagrants and beggars violates citizens' property rights or personal freedom. In real life, the property given by charity givers based on sympathy is obviously a voluntary act rather than an infringement on their property rights and interests, while citizens still enjoy the right to walk freely, shop freely and relax in public places and main streets, rather than being restricted by beggars. Of course, illegal begging, robbing and stealing in begging have already constituted an infringement on the legitimate rights of others, so it is natural to resolutely crack down. This also reflects the rationality of laws and regulations formulated by local governments.
Then, can all begging be banned because of illegal begging, robbing, stealing, cheating and other illegal acts? The answer is obviously no, because according to this logic, almost all behaviors in society should be banned. It must be noted that some illegal factors in an act are not enough to affect the effectiveness of the whole act, unless the proportion of illegal acts has reached the point of subverting the legitimacy of the whole act. Naturally, it cannot be inferred that this kind of behavior is illegal as a whole because of some illegal factors in vagrancy and begging. At present, the main reason why the government has designated begging-forbidden areas is that such behaviors hinder the image of the city and affect social order, or illegal begging is repeatedly prohibited (see the basis for formulating measures for the management of vagrants and beggars in various places). But this reason is only an inference or speculation, not a concrete empirical analysis. In other words, it is still something that may happen, not something that will happen. Until the government can fully demonstrate the harm of vagrancy and begging, the possible consequences of vagrancy and begging are still unknown. We naturally have no reason to praise vagrancy and begging, but at the same time, there is no reason to declare vagrancy and begging illegal and prohibit vagrancy and begging. Therefore, in this case, the government clearly believes that vagrancy and begging are prohibited, at least for lack of convincing reasons.
3. There is a lack of morality in delineating areas where begging is prohibited or restricting legal begging.
We can't deny that at this stage, the government's efforts to strengthen the governance of vagrants and beggars are influenced by the overall social exclusion psychology to some extent. The exclusion of urban residents from outsiders (including vagrants and beggars) is largely due to realistic factors such as urban employment pressure and social security level. This discrimination can be seen from the attitude of urban residents towards poverty. The survey shows that 69. 1% of the respondents believe that poverty is caused by themselves, and only 22.4% believe that poverty is caused by social reasons. When it comes to whether the government should help these people, about 40% of the respondents think that it is not the government's obligation, but the government's consideration for social stability, and even a few people think that the government should not help. six
It is precisely because the government's restrictions on vagrants and beggars, to a certain extent, are the result of conforming to the overall social exclusion psychology that the government promulgated laws and regulations to govern vagrants and beggars, greatly reducing the risks borne by the government. At present, the judiciary has no right to review various rules or regulations formulated by the government. According to the provisions of administrative law, citizens have no right to file a lawsuit against the abstract administrative act of the government. Facts have proved that if the judiciary does not have the power to review regulatory documents such as laws and regulations, relying on the National People's Congress for filing is only a kind of post supervision, and relying on superiors, the National People's Congress and the masses for supervision is only a theoretical possibility, then the cost that the government needs to pay for formulating laws and regulations that infringe on the legitimate rights of some people is only moral pressure. In this case, the government will strengthen the social exclusion psychology of the vast majority of people in the form of legislation, and the moral hazard of the government will drop to the lowest point. Moreover, this moral pressure is further decomposed by the huge government and the social atmosphere in which the absolute majority still lack the necessary enthusiasm for the law. In this case, the government's motivation to make such laws and regulations will be strengthened, because it is almost a super-profit behavior-it not only prevents the loss of local welfare, but also does not have to bear the risks it should bear. This is also one of the reasons why begging is prohibited everywhere. At the same time, the integration of mutual learning effect and risk-taking also reduces the few bad risks or pressures.
In a society without multicultural confrontation, vagrants and beggars have almost no right to speak and no spokesperson to defend them. Some scholars may argue that the Constitution and laws stipulate that citizens have the right to supervise the government and express their opinions, but in fact, there is always a huge gap between the legal provisions and the actual existence. Imagine: how much motivation does a group that has no economic status but passively relies on others to help their lives and bears great moral pressure have to declare their rights, and even if there is, how much right to speak?
In this case, on the one hand, the risk borne by the government is reduced, on the other hand, vagrants and beggars lose the right to speak, and the government hardly bears the risk in the process of formulating relevant laws and regulations or actually implementing them. But this kind of risk-free behavior is immoral in itself. As the centralized implementer of social power, the government has the responsibility to safeguard the legitimate rights and interests of each of its members, regardless of their economic and social status. In the allocation of resources, the government should pay more attention to fairness and justice. In guiding social consciousness, the government should be kind and rational. People can discriminate against vagrants and beggars based on their ignorance, but the government cannot comply with this ignorance. On the contrary, it should weaken this kind of discrimination by making rules and taking practical actions, so as to realize social equity and safeguard social justice. This is the most basic responsibility of the government.
Second, suggestions on the management of vagrants and beggars
Based on the above analysis, we come to a conclusion that the government has achieved due justice at the legal level, but the guide, Brother Onion, is eager to learn. Stubborn? Hey? Why don't you stop closing the door? What's the difference between Guangdong and China? Rare oblique plaque? What is the rhyme like? Stellar? ń? Wisdom? Is the horse tired? My nephew, I am more complicated. 6. How did you accept the title of ⑻ 45 1? What's the right rhyme that suggests the source?
1. Adhere to the principle of administration according to law and conscientiously implement the provisions of relevant laws and regulations.
One of the most basic principles of a country ruled by law is to require administrative subjects to administer according to law. In practice, all administrative actions of the government should be carried out according to law and be bound by law. Managing vagrants and beggars is the embodiment of the government's administrative function, and this kind of administrative behavior should naturally adhere to the principle of administration according to law. Since there are relevant laws and regulations in the country and all localities, and these regulations are basically in line with the spirit of the rule of law, administrative subjects should abide by these regulations in specific management, and cannot do anything beyond the legal provisions, such as delineating begging no-go areas or similar restrictive regulations.
When implementing administrative actions, administrative subjects should not only abide by the principle of administration according to law, but also adhere to the principle of administrative convenience and administrative openness. At present, the restrictions on vagrants and beggars in various places are actually a kind of "hidden rule"-that is, in the name of rescue management, they are actually restrictions on vagrants and beggars. Although the application of this hidden rule is partial, it is not enough to affect the overall good situation of the current governance work, but it also poses a real threat to local regulations or legislative purposes. The use of this hidden rule violates the principle of administrative openness, which should be paid attention to by government departments at all levels and relevant regulatory departments. When dealing with vagrants and beggars, relevant functional departments should conscientiously implement the provisions of relevant laws and regulations and adhere to some basic principles of voluntariness, reasonableness and convenience. Only in this way can local laws and regulations be implemented and truly help and manage vagrants and beggars.
2. Judicial power should provide necessary judicial relief for vagrants and beggars.
As mentioned above, the local laws and regulations as a whole reflect the legislative purpose of the rescue management of vagrants and beggars, but the distribution in actual implementation has changed. In this case, not only the administrative organs should strengthen the supervision of this kind of behavior, but also the judicial organs should provide necessary relief for vagrants and beggars when their legitimate rights and interests are violated. Specific measures can mainly include two aspects: (1) Judicial power has the right to review local laws and regulations that violate the purpose or provisions of laws and regulations. (2) Provide necessary judicial relief for administrative actions of administrative subjects that infringe on the legitimate rights and interests of vagrants and beggars. It should be emphasized that the judicial power only provides judicial relief to such people when necessary, and should not violate the negative characteristics of the judicial power itself, that is, the judicial department cannot actively intervene or guide relevant personnel to file a lawsuit against the administrative organ.
On the other hand, according to the characteristics of vagrants and beggars, the current legal aid should play a greater role.
3. Establish and improve rural social security.
The appearance of vagrants and beggars fundamentally reflects the great difference between urban and rural economies. From the perspective of social security level, from 199 1 to 200 1, urban per capita social security expenditure accounts for 15% of per capita GDP, while rural areas only account for 0. 18%, and urban per capita social security expenditure is 90% of rural areas. At present, the most feasible way to solve this problem is to improve rural social security. Only by establishing and perfecting the rural social security system and weakening the difference between urban and rural social security levels can the number of vagrants and beggars be reduced as much as possible. This is also the most effective way to solve the problem of vagrancy and begging at present. At present, there are different opinions on the establishment of rural social security system in academic circles, and there are mainly two influential ones: (1). Land for security. (2)。 Strengthen the construction of rural social security system and improve the level of social security. The concrete measures are: accelerating the establishment and improvement of the rural minimum living security and disaster relief system; Establish rural social medical insurance system as soon as possible; Establish and improve the rural social endowment insurance system. seven
4. Strengthen the financial allocation system and implement the incentive mechanism.
At present, the management of vagrants and beggars has three main characteristics: (1) temporary; (2) repatriation; (3) Free of charge. Although this feature has its rationality, it also has its disadvantages, mainly because the temporary and repatriation nature of rescue management can not really solve the survival problem of vagrants and beggars. Governing vagrants and beggars is a problem of local management, and repatriating such people will alleviate local social pressure. But from a nationwide perspective, this kind of repatriation has not solved the problem-the number of vagrants and beggars will not be reduced because of repatriation, and the government has not solved the problem in the process of repatriation. On the contrary, it has increased the management cost because of repatriation, which is uneconomical as a whole. But why is there still enthusiasm everywhere? The main reason is that the funds for rescue management are paid by local governments, which means that vagrants and beggars are actually consuming local social welfare. In fact, many vagrants and beggars enter cities because of the potential temptation of "welfare immigrants". Because of the huge economic difference between urban and rural areas and the contrast of social security level between urban and rural areas. Many people may beg for more money in their hometown than their labor income. Moreover, with the change of government governance concept and service mode, it is not completely impossible for vagrants and beggars to enjoy some welfare benefits in cities.
Under the current circumstances, it is necessary to provide reasonable assistance to vagrants and beggars to stimulate the enthusiasm of local governance. The author thinks that the more feasible way is for the central government to subsidize the local relief management and give preferential support to the specific subsidies. The central government can allocate more funds to cities with greater pressure on disaster relief management, and cities with less pressure on disaster relief management can appropriately reduce funds. At the same time, the provincial government should coordinate and reasonably arrange the rescue management institutions, so that the limited rescue management funds can be used economically and efficiently.
On the other hand, the rescue management of vagrants and beggars can be incorporated into the performance appraisal indicators of local government departments and an incentive mechanism can be established. This will promote the development of rescue management and provide impetus for the management of vagrants and beggars.
5. Relax the access standards of charities and give play to the rescue role of charities.
According to statistics, in 2002, there were more than 100 charitable organizations in China, and in 1998, there were 654.38+200,000 charitable organizations exempted from tax by the US government. China's philanthropy lags far behind foreign countries, and most charities are not social organizations but government-run organizations. The Measures for the Administration of Assistance stipulates that "the State encourages society and individuals to provide assistance to vagrants and beggars". Therefore, it is undoubtedly a more realistic way to solve the problem of vagrancy and begging by strengthening the assistance provided by charitable organizations and collecting social love at a low price. In fact, in history, Britain and other countries have been taking the road of combining government relief with social charity relief, and the final effect is very good. In practice, the government should lower the admission standards of such institutions, provide a better legal environment for their operation, and encourage and support charities to help vagrants and beggars.
The governance of vagrants and beggars is a comprehensive social problem, because it involves a country's human rights protection, the degree of constitutional implementation and the concept of government governance. Therefore, the governance of vagrants and beggars must adhere to the principle of rule of law, proceed from the principle of justice, rationality and effectiveness, and solve it through various efforts. In the specific operation, we should constantly adjust the governance methods according to the specific problems in the governance process. I believe that through the continuous exploration and efforts of the government, the governance of vagrants and beggars will continue to improve.
Notes and references
[1] According to incomplete statistics, at present, Beijing, Shanghai, Yunnan, Chongqing, Suzhou, Nanjing, Changzhou, Guangzhou, Shenzhen, Zhuhai, Chengdu, Changsha, Shenyang, Xi, Zhengzhou and other provinces and cities have issued rescue management measures for vagrants and beggars or designated "key rescue areas".
This relative rationality mainly comes from the judgment of the literal value of the regulation itself. Restrictive regulations in various places (which should be punished according to regulations) mainly include the following categories: 1, disturbing social order in important public places; 2, affecting the safety of traffic operations; 3, theft, fraud, robbery, child trafficking, participation in underworld begging gangs and other criminal acts; 4. Obstructing law enforcement by violence or threat.
3. Freedom of Movement of Vagrants and Beggars and Its Constitutional Significance, Law, June 2004, 54 pages.
At present, Yunnan Province and Nanjing City clearly stipulate or allow the establishment of no-begging areas at the regulatory level. For example, Nanjing has designated 14 as a "key relief area"-the so-called no-begging area.
5 See Dworkin: Taking Rights Seriously, China Encyclopedia Publishing House, 1998, pp. 243-270.
6 Yang, 2004
7 Yang: "Urban-rural differences and overall reform ideas of social security system in China", Journal of Zhejiang University, March 2004, 12~20 pages.
8 Guan Jian: An Analysis of Professional Beggars, Society, June 2004, p. 54-57.
9 Gan Jixiang: The Deep Reasons for the Promulgation of Prohibition, China Social Herald, May 2004, p. 18~ 19.