家庭教育令的强制力研究——兼论《家庭教育促进法》法律责任条款

Study on the Coercive Power of Family Education Orders-Also on the Legal Liability Clause of Law of Family Education Promotion

家庭教育令是《中华人民共和国家庭教育促进法》颁行后,司法机关在实践中所创设的新型令状,其针对未成年人的父母或其他监护人养而不教、教而不当的行为予以干预和纠正。从法教义学分析来看,虽然《中华人民共和国家庭教育促进法》对家庭教育令的强制力没有作出明确规定,但存在隐性赋予。对此,司法机关以“法律责任”章为依据,寻求援引他法针对拒不履行者设置罚款、拘留乃至追究刑事责任,而督促监护令等相关令状亦对强制力进行了探索尝试,但实际效果均不理想。如此困境源于家庭教育关系的情感性与传统强制执行措施间的不适配。促进家庭教育令制度的落实,应弱化执行措施的惩罚性与对抗性,着力推动判后回访机制及专门机构扶持制度的发展,以保证金代替罚款,并促进家庭教育令与撤销监护及专门教育间的衔接。

The Family Education Order is a new writ created by the judicial authorities in practice after the promulgation of Law of the People's Republic of China on Family Education Promotion.It intervenes and corrects the behavior of parents or other guardians who raise minors without teaching or teaching improperly.From the perspective of legal doctrinal analysis,Law of the People's Republic of China on Family Education Promotion does not make clear provisions on the coercive force of family education order,but there are implicit endowments.Based on legal liability chapter,the judicial authorities attempt to invoke other laws to impose fines,detention,and even pursue criminal responsibility on those who refuse to comply.And related orders such as guardianship orders also have conducted compelling force exploration.However,all the practical effects are unsatisfactory,and this dilemma stems from the mismatch between the emotional attributes of family education relationships and traditional punitive measures.To promote the implementation of the family education order system,it is suggested to weaken the punitive and antagonistic nature of the implementation measures,promote the development of the return visit mechanism after the judgment and the support of special institutions,replace the fine with the deposit,and promote the connection between the family education order and the withdrawal of guardianship and special education.