“禁止性骚扰”法律成本的性别分配——新修《妇女权益保障法》的法律经济学分析

Sex Distribution of the Litigation Cost of "Prohibiting Sexual Harrasment": Analysis on the Newly Amended Law on the Protection of Women's Rights and Interests with thd Law-Economics View

新修《妇女权益保障法》明确规定“禁止性骚扰”,无疑是一个历史的进步。但由于法律要件不完全,其它法律法规不配套,产生了法律制度供给的局部不足,立法仅具倡导意义,很难实现法律的预期效益。不仅如此,性骚扰人身权属性的立法设计,在事实上可能产生雇主和其他责任主体的缺位,而仅靠受害妇女投诉禁止性骚扰,在法律文化和程序障碍共存的情况下,等于将救济成本和诉讼风险同时分配给可能是潜在受害人的女性,这可能导致权利的义务化逆转,造成新的法律成本分配的性别不平等。

It＇s a historical improvement that the new issue of ＂Law of the People＇s Republic of China on the Protection of Rights and Interests of Women＂ stipulated that the sexual harassment was forbidden. However, there is a shortcoming in this lawmaking exercise as it has not built bridges with other relevant laws and it therefore remains incomplete and cannot be enforced and attain its value as expected. Moreover, this law has failed to establish employers and other entities as habeas corpus in ease of sexual harassment. Only relying on potential victims, who are often women, to bring forth complaints to stop sexual harassment then unfairly distributes higher costs for them to seek compensation and to take risks of litigation against unfriendly legal culture and barriers in procedures. This will result in a reversion in rights and duties and creates unequal distribution of litigation cost between women and men.