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SIMULARIZING VIJNANA AND DESIRE, REPEATING YI AND JUSTICE： TRANSPLANTING DELEUZEAN BECOMING INTO THE MACHINE OF HONG KONG ANTI-DOMESTIC VIOLENCE LAW

SIMULARIZING VIJNANA AND DESIRE, REPEATING YI AND JUSTICE： TRANSPLANTING DELEUZEAN BECOMING INTO THE MACHINE OF HONG KONG ANTI-DOMESTIC VIOLENCE LAW
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摘要 The law controlling domestic violence in Hong Kong was amended in 2008 and 2009 The revised law introduces a new injunction order which can mandate that abusers attend counseling programmes, and extends legal protection to same-sex couples. As the author have argued elsewhere, the changes in the law can create （gender/sexual） justice as both issues engage with traditional Han-Chinese culture. Nonetheless, with the implementation of the new machine, the following two questions still need to be addressed. Can the changes produce justice？ What is justice？ This paper investigates, in Deleuzean terms, how the machine of anti-domestic violence law in Hong Kong creates the becoming of justice. Hopefully, the examination of this issue can also shed light on the future development in China's Mainland of the law controlling domestic violence. The law controlling domestic violence in Hong Kong was amended in 2008 and 2009 The revised law introduces a new injunction order which can mandate that abusers attend counseling programmes, and extends legal protection to same-sex couples. As the author have argued elsewhere, the changes in the law can create （gender/sexual） justice as both issues engage with traditional Han-Chinese culture. Nonetheless, with the implementation of the new machine, the following two questions still need to be addressed. Can the changes produce justice？ What is justice？ This paper investigates, in Deleuzean terms, how the machine of anti-domestic violence law in Hong Kong creates the becoming of justice. Hopefully, the examination of this issue can also shed light on the future development in China's Mainland of the law controlling domestic violence.
作者 Man-chung CHIU
机构地区 School of Law
出处 《Frontiers of Law in China-Selected Publications from Chinese Universities》 2014年第2期159-173,共15页 中国高等学校学术文摘·法学（英文版）
分类号 O342 [理学—固体力学] TH17 [机械工程—机械制造及自动化]
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  • 1In Chinese, "tongzhi" includes two words - "'tong" ([同]) means the "same" and "zhi" (志) connotes "beliefs (of anti-heterosexism)"; "tongzhi" therefore signifies all people who share and stand up for the destabilization of heterosexism. See, CHIU Man-chung, Contextualizing the Same-Sex Erotic Relationship: Post-Colonial Tongzhi and Transgender Political Discourse on Hong Kong and PRC Law of Marriage, in Robert Wintemute, Legal Recognition of Same Sex Partnership: National Law, European Law and International Law, Hart Publishing (London), (2001).
  • 2CHIU Man-chung, Politicizing Han-Chinese Masculinities: A Plea for Court Mandated Counselling for WlfeAbusers in HongKong, 9 Feminist Legal Studies 3 (2001).
  • 3CHIU Man-chung, Simularizing Tradition and Foreign, in Piotr Pachura, New Knowledge in a New Era of Globalization, InTech (Vienna), at 161 (2011 ).
  • 4See CHIU, fn. 4.
  • 5The Deleuzean school argues that time is a "becoming" and "repetition" and is made up of "durations," which are constituted by mental activities (perception and memory). Deleuze also proposes that time/'duration' progresses, not in a linear direction, but by continuously splitting into past and present, where the living presence is the contraction of repetition. Deleuze's first synthesis of time further explains this: the past is not the retention of what happened, but a reflexive past of reproduced particularity. The Deleuzean second synthesis of time then states: only if past presents, can the present (past present) pass into and fold with the past - only when that happens, can the new present replace the past present; simply put: Past and present are becoming at the same dot. [Henry Somers-Hall, Deleuze's Difference and Repetition, Edinburgh University Press (Edinburgh), at 63 (2013).].
  • 6When present passes into past, past also engages (not mixes) with present at the same duration - the past actualizes and becomes part of the present. [Gilles Deleuze, Differences and Repetition, Columbia University Press (New York), at 80 (1994).].
  • 7When (part of) the past actualizes, it is becoming the line of social force in a "duration" and "conditions all the experience that we have, since actual experience is a composite of the virtual natural natures of perception and memory." [Reidar Due, Deleuze Cambridge, Polity (UK), at 31 (2007).].
  • 8Using this paradigm, then traditional Han-Chinese culture (past) has never left the Hong Kong contemporaneity. Though tradition is part of the social control in current society, it does not and cannot stop the current society from changing.
  • 9Matrimonial home means "a home in which the parties to a marriage ordinarily reside together whether or not it is occupied at the same time by other persons." [Section 2(1)] The order has no relation with property rights. In other words, a cohabitant who has no proprietary right can also apply to exclude her/his partner who is the owner of the place. Before the amendment introduced in 2008 and 2009, the orders which an abused party can apply for included: "(a) a provision restraining that other party from molesting the applicant; (b) a provision restraining that other party from molesting any child living with the applicant; (c) a provision excluding that other party from the matrimonial home, or from a specified part of the matrimonial home, or from a specified area whether or not the matrimonial home is included in that area; and (d) a provision requiring that other party to permit the applicant to enter and remain in the matrimonial home or in a specified part of the matrimonial home, whether or not any other relief is being sought in the proceedings. After the amendments, the orders available include (a) a provision restraining the respondent from molesting the applicant; (b) a provision restraining the respondent from molesting any specified minor; (c) a provision prohibiting the respondent (i) (where the applicant has been molested by the respondent) from entering or remaining in - (A) the residence of the applicant; (B) a specified part of the residence of the applicant; or (C) a specified area whether or not the residence of the applicant is in that area, whether or not the residence is the common residence or matrimonial home of the applicant and the respondent; (ii) (where the specified minor has been molested by the respondent) from entering or remaining in - (A) the residence of the specified minor; (B) a specified part of the residence of the minor; or (C) a specified area whether or not the residence of the minor is in that area, whether or not the residence is the common residence of the minor and the respondent; (d) a provision requiring the respondent to permit - (i) (where the applicant resides with the respondent) the applicant to enter and remain in the common residence or matrimonial home of the applicant and the respondent or in a specified part of such common residence or matrimonial home; or (ii) (where the specified minor resides with the respondent) the minor to enter and remain in the common residence of the minor and the respondent or in a specified part of such common residence, whether or not any other relief is being sought in the proceedings. (1A) A court may in an injunction containing a provision mentioned in subsection (1)(a) or (b) include a provision requiring the respondent to participate in any programme, approved by the Director of Social Welfare, that is aimed at changing the attitude and behavior that lead to the granting of such injunction.".
  • 10Before the amendment introduced in 2008 and 2009, only parties to marriage and their children could apply for an injunction order under the Ordinance. (Section 3) Under the amended Ordinance, the following persons can apply for an injunction: "(a) the applicant's father, mother, grandfather or grandmother (whether natural or adoptive); (b) the applicant's step-father, step-mother, step-grandfather or step-grandmother; (c) the applicant's father-in-law or mother-in-law who is the natural parent, adoptive parent or step-parent of the applicant's spouse; (d) the applicant's grandfather-in-law or grandmother-in-law who is the natural grandparent, adoptive grandparent or step-grandparent of the applicant's spouse; (e) the applicant's son, daughter, grandson or granddaughter (whether natural or adoptive); (f) the applicant's step-son, step-daughter, step-grandson or step-granddaughter; (g) the applicant's son-in-law or daughter-in-law who is the spouse of the applicant's natural child, adoptive child or step-child; (h) the applicant's grandson-in-law or granddaughter-in-law who is the spouse of the applicant's natural grandchild, adoptive grandchild or step-grandchild; (i) the applicant's brother or sister (whether of full or half blood or by virtue of adoption); (j) the brother or sister (whether of full or half blood or by virtue of adoption) of the applicant's spouse; (k) the applicant's step-brother or step-sister; (1) the step-brother or step-sister of the applicant's spouse; (m) the applicant's uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption); (n) the uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption) of the applicant's spouse; or (o) the spouse of any person mentioned in paragraph (i), (j), (k), (1), (m) or (n). Whether a couple who have not married are qualified to apply injunction are determined with regard to the following criteria: (a) whether the parties are living together in the same household; (b) whether the parties share the tasks and duties of their daily lives; (c) whether there is stability and permanence in the relationship; (d) the arrangement of sharing of expenses or financial support, and the degree of financial dependence or interdependence, between the parties; (e) whether there is a sexual relationship between the parties; (f) whether the parties share the care and support of a specified minor; (g) the parties' reasons for living together, and the degree of mutual commitment to a shared life; (h) whether the parties conduct themselves towards friends, relatives or other persons as parties to a cohabitation relationship, and whether the parties are so treated by their friends and relatives or other persons." (Section 3B).
Frontiers of Law in China-Selected Publications from Chinese Universities
2014年 第2期

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