我国防治家庭暴力立法的主要问题及对策

Main Issues and Countermeasures of Law-making Against Domestic Violence in China's Mainland

我国《婚姻法》等现行立法明确禁止家庭暴力。然而,现行立法干预模式存在仅注重事后干预、对施暴行为缺乏有效制裁、对受害人欠缺切实可行的救济、家庭暴力界定范围过窄、各有关机构分工不明确、家庭暴力取证难与认定难等问题。我国应借鉴工业化国家和地区的立法经验,尽快制定防治家庭暴力单行法,积极利用公权力预防和制止家庭暴力。防治家庭暴力应贯彻预防为主、实行教育与处罚相结合原则,综合治理,明确各相关单位或机构的职责,制定具体干预措施和程序。

The current Marriage Law and provisions related in other laws have prohibited domestic violence.However,there are obvious problems which are as follows under current law.The definition of domestic violence is too narrow;division of functions and responsibility for agencies related is unclear;it focuses on later intervention without practical remedies and sanctions;there is the lack of effective means to protect family member from domestic violence or coming domestic violence probable in the future;there exist difficulty in identification of domestic violence and evidence collection.Successful legislative experience to prevent from domestic violence in industrialized countries and regions should be introduced into China's Mainland;that is to enact a single national protection from domestic violence law in which it should be entitled to take public power to prevent from domestic violence,expressly define domestic violence,establish the principle with the contents featuring prevention firstly,comprehensive management,education with punishment;it regulates specifically the responsibilities of relevant agencies or institutions;it should create concrete and feasible intervention measures against domestic violence such as protection order.It regulates procedure to prevent from domestic violence.