可操作性家庭暴力概念入法之理由分析

Analysis on Reasons for Operable Concept of Domestic Violence into Legislation

家庭暴力在古代社会体现的是男性家长的特权和权威,通过家礼由家长在家庭内部自行解决。由于当代社会男女两性平等和人权理念的影响颇深,人们已经意识到家庭暴力并非家庭内部纠纷,而是侵犯人权的社会问题,仅靠道德是无法解决的。同时,家庭暴力是世界范围内普遍存在的问题,因此,从国际公约禁止针对妇女的暴力开始,到目前为止已有40余个国家颁布了反家庭暴力法。我国2001年修订的《婚姻法》虽然明确规定"禁止家庭暴力,"可并未给予定义;随后《最高人民法院关于适用〈婚姻法〉若干问题解释(一)》虽对"家庭暴力"给予定义,但与国际公约等法律文件相比其先天存在许多不足。这不仅削弱了反家庭暴力的力度,而且也不利于保护受害者的权利。可操作性概念入法尤为必要。

The domestic violence in ancient society was the masculine guardian＇s privilege and authority,which was voluntarily solved through the family ritual by the guardian in the family interior.Because the influence of the idea on equality between men and women and human rights in contemporary society is quite deep,people have been aware that domestic violence is not simply a dispute within the family,but a social problem on violations of human right,which is unable to be solved only depending on the morals.Meanwhile,domestic violence is a worldwide conunonplace.Therefore,beginning from the prohibition of violence against women in international joint pledges,over 40 countries have already issued the rules and regulations against domestic violence.Although China＇s ＂Marriage Law＂ revised in 2001 explicitly stipulates that ＂domestic violence is prohihited＇,the definition has not been given. Then ＂Interpretation of Several Questions Involving Application of ‘Marriage Law＇＂,promulgated by the Supreme People＇s Court of PRC,gives the definition,but compared with such legal documents as international covenants,there still exist many inherent defects which weaken the anti domestic violence,and go against the protection of victims＇ rights. It＇s of great significance to stipulate an operable concept into the law.