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禁闭措施以《人民警察法》为依据,不违反法律保留原则,但其适用范围过于宽泛,适用中缺少程序保障,监督和救济措施很不完善并存在立法和适用扩大化的趋势。对于违法乃至犯罪行为,适用禁闭措施达不到应有的约束强度,且与现行规定存在冲突;对于轻微的违纪行为适用剥夺人身自由的行政措施不符合比例原则的要求;实践反映出禁闭措施教育挽救作用有限,不能达到其应有的立法目的。禁闭措施存在严重的合法性危机,不符合法治政府建设的目标,有侵犯警察人身自由之嫌,没有继续存在的必要。
The confinement measures are based on the “People’s Police Law” and do not violate the principle of legal reservation. However, their scope of application is too broad, their application lacks procedural guarantees, supervision and remedial measures are imperfect, and there is a trend of enactment and application of enlargement. For illegal and even criminal acts, the application of confinement measures can not meet the required restraint intensity, and there is a conflict with the existing provisions; for minor misconduct, deprivation of personal liberty administrative measures do not meet the requirements of the proportionality principle; practice reflects the confinement measures education The rescue has a limited role and can not meet its due legislative purpose. There are serious legitimacy crises in the confinement measures, which are not in line with the goal of building a government under the rule of law. They are suspected of violating the personal liberty of the police and are not necessary for their continued existence.