家庭教育的司法保障--基于《家庭教育促进法》第八条展开

Judicial Guarantee of Family Education--Based on Article 8 of the Law on the Promotion of Family Education

家庭教育需要得到司法保障,准确理解《家庭教育促进法》第八条是研究家庭教育司法保障的基础。在《家庭教育促进法》中,司法机关承担着引导者、预防者和惩治者的角色,发挥着维护和保障的重要作用。第八条中“发挥职能作用”具体指向司法机关应充分保障未成年子女的家庭学习权以及父母(或其他监护人)的家庭教育权,并保证后者家庭教育义务的及时有效履行。“共同做好家庭教育工作”则明确了司法机关并非主要依托主体,不承担直接介入家庭教育的角色,须在司法权能范畴内通过具体司法行为做好家庭教育的保障和促进工作。《家庭教育促进法》围绕第八条设定了处罚类、强制类、训诫类、指导类多重保障方法,各自发挥不同功用,也存在形式上有区别但实质雷同的载体。当然,家庭教育的司法保障存在限度,司法机关介入家庭教育应坚持柔性司法理念,在充分尊重“家庭自治”的基础上,保持司法介入家庭教育的谦抑性立场。

Family education needs judicial protection.An accurate understanding of Article 8 of the Law on the Promotion of Family Education is the basis for studying the judicial protection of family education.In the Law on the Promotion of Family Education,the judicial organs play the role of guidance,prevention and punishment,and assumes the responsibilities of safeguarding and guaranteeing.Article 8 specifically states that the judiciary shall fully protect the right of minor children to study at home and the right of their parents(or other guardians)to family education.At the same time,the judiciary should ensure that parents fulfill their obligations of family education in a timely and effective manner.“Doing a good job of family education together”makes it clear that the judiciary is not the main body to rely on and does not assume the role of directly promoting family education.The protection and promotion of family education should be done well within the scope of judicial power through specific judicial acts.The Law on the Promotion of Family Education sets up multiple guarantee paths,such as punishment,coercion,admonition and supervision,each of which plays different functions,and has carriers which are different in form but identical in essence.Of course,there are limitations to the judicial guarantee of family education.The intervention of judiciary in family education should be based on the existence of public interests.The judiciary should fully respect family autonomy and maintain the modest position of judicial intervention in family education.