摘要
英国1839年《婴幼儿监护权法案》通常被认为是英国妇女获得子女监护权的标志性文书,也被认为是英国妇女所发起的平权风潮的产物,起到了促进妇女权利平等、突破父权绝对主义的作用。不过,这部立法的法理基础、法律条款和立法中的辩论都呈现出较多的妥协性和延续性,使法案的革命意义大打折扣。本文从马克思关于资产阶级家庭立法的论述出发,分析该法案颁布前后英国的未成年人监护权的立法与司法实践,以及1839年《婴幼儿监护权法案》的讨论与颁布的过程,联系它对联合国的《儿童权利公约》之影响,试图对该法案的历史地位进行重新评价。
The Custody of Infants Act 1839 is commonly regarded as a representative in- strument marking the beginning of British women obtaining guardianship of their children, as well as a result of the movement of equal rights initiated by British women. It was thought to have promoted the equality of women＇s rights and broken through against the absolutism of pa- rental rights. However, this act featured properties of compromise and continuity in terms of its jurisprudential basis, the legal terms and the debates during its legislation, resulting in a reduc- tion of its revolutionary significance. Starting from the statement by Marx on the capitalist lawmaking of family law, this paper will compare legislation and judicial practices in the field of juvenile custodianship before and after the 1839 Act, analyze the processes of debates and promulgation of the 1839 Act, and re-evaluate the historical status of the 1839 Act taking into account its influence over the United Nations Convention on the Rights of the Child.
出处
《人权》
2017年第5期133-150,共18页
Human Rights
