中国婚姻“私人领域化”?——当代中国法律实践中的妇女离婚

“Privatization” of Marriage in China? Divorce of Women in Contemporary Chinese Legal Practice

当代中国法律实践中对争议离婚案件的审理,在离婚判决依据、财产分割、子女抚养等方面,源自中国法律传统中面对社会实际的实用性考虑与实质道德理念相结合的“实用道德主义”思维方式仍在延续,这与极端强调个人权利的西方法律仍多有不同:当代中国婚姻法律扩展了妇女在家庭纠纷中的选择权限,增强了妇女的主体意识,但这并非意味着妇女就获得了主体性地位一法律实践应根据具体事实情形,考虑到部分妇女群体在社会中的弱势境遇,恰当结合道德关怀与实用考虑,才能真正有效保护部分弱势妇女群体的权利。

In contemporary Chinese legal practice concerning the trial of disputed divorce cases, the traditional "practical moralism" mode of thinking, which is a combination of pragmatism and ethical idealism in dealing with China's social reality, still persists in divorce basis judgment, property division, child support, etc. This is quite different from Western laws which place extreme emphasis on individual rights. Contemporary Chinese marriage law has expanded women's right to choose in family disputes and enhances women' s subjective consciousness ,but this does not mean that women's subjectivity has been established. Legal practice still needs to be based on specific facts and circumstances, taking into account the disadvantaged situation of some women' s groups in society, and properly combine moral care with practical considerations in order to truly protect the rights of the vulnerable women' s groups.