儿童虐待国家干预制度比较研究
发布时间：2018-08-09 08:01
【摘要】：儿童虐待是各种损害儿童利益行为的总称,主要表现为对18周岁以下未成年人的身体虐待、忽视、性侵犯、情感和精神虐待四种形式。虐待行为对儿童身心健康的损害会阻碍儿童的健康发展,同时损害国家未来的人力资源公共利益,因此国家负有保护儿童的责任和义务。从人权保护的角度,国家负有尊重、保护、实现基本人权的义务。儿童的生命权和发展权是联合国《儿童权利公约》中的基本权利,免予受到一切形式暴力侵害的权利是在其基础之上的派生权利。联合国《儿童权利公约》中缔约国的首要责任是对各种侵害儿童的行为进行预防和干预。从利益保护的角度,儿童是一国未来劳动力的主要来源,儿童的发展状况直接决定一个国家未来人力资源水平的高低。国家对儿童虐待行为的干预,既是对儿童个人利益的保护,也是对国家公共利益的保护。保护儿童利益是当代有关儿童立法的价值取向。各国法律所保护的儿童利益范围,不仅包括儿童的生存、身体完整利益,还包括儿童的心理、认知、情感利益。保护并实现儿童利益是国家干预儿童虐待的终极目标,干预制度的构建和实施都围绕儿童的基本利益需要展开。法律所保护的儿童利益内涵和外延,是决定法律保护方法的核心因素。如何在国家干预制度中实现儿童利益最大化是本文研究的主要问题。本文主要采用比较研究方法,通过对不同国家具体干预措施的主体、程序、条件、关系等内容的深入比较分析,揭示不同国家儿童虐待干预制度都共同包括的核心构成要素,为我国儿童虐待干预制度的构建提供相关的依据。界定“儿童虐待”概念是所有法律制度的起点。“儿童虐待”的法律概念,既包含了对虐待行为的判断标准,为国家干预程序的启动提供了依据,也包含了法律所保护的儿童利益范围。各国“儿童虐待”的法律规范普遍保护的儿童利益,包括儿童的身体发展、认知发展和社会发展三方面利益。在儿童利益的保护方法上,鉴于儿童的脆弱性和依赖性特点,主要是通过父母的照顾义务和国家的监督替代责任来保障儿童的权利。由于父母是虐待儿童的主要主体,因此国家干预措施的对象主要是父母,国家干预制度的主要内容是由对父母虐待儿童行为的干预措施所构成。国家干预措施围绕两方面内容展开：一是对儿童的保护,二是对父母的帮助和监督。从儿童利益需要的角度而言,儿童生存是其他一切利益存在的基础,保障儿童人身安全是各国国家干预的最低目标。另一方面父母是实现儿童利益的最佳人选,家庭是实现儿童利益的最佳场所,帮助儿童回归正常家庭是国家干预的最高目标。各国干预制度都表现出优先帮助监督父母、最大限度避免父母儿童分离的特点。仅在帮助监督措施无效的情形下,才会考虑适用剥夺父母监护权措施。本文第一章以儿童利益的内涵和保护方法为切入点,通过总结国家介入亲子关系的历史轨迹,揭示国家限制父母行为的具体路径。亲子关系立法的历史演进轨迹反映了国家介入亲子关系的必要性原则和比例性原则。促使国家加大保护儿童力度的原因,在于儿童社会价值的变迁。保护儿童免予受到一切形式的伤害,是国家的基本责任之一。联合国《儿童权利公约》规定了缔约国保护儿童免予受到各种伤害的具体要求。第二章以儿童虐待的概念和干预的启动程序为研究对象,通过分析儿童虐待的法律概念,指出决定各国干预标准的核心要素是儿童利益的损害及程度。各国普遍采用“危害”标准作为判断儿童利益损害的依据,既包括了儿童受到的实质性损害,也包含了使儿童处于高度危险状态的伤害风险。一旦儿童损害的程度符合国家干预标准,后续的报告、调查和评估程序都将启动。第三章以各国具体的干预措施为研究对象,对干预措施的对象、功能、适用条件、具体方式进行比较研究。根据对象的不同,干预措施可以分为针对父母的干预措施和针对儿童的保护措施。国家对父母的干预措施,既包括对父母的帮助和支持,又包括对父母行为的监督,干预目标是尽量协助、督促父母为儿童提供适格照顾,帮助儿童回归家庭。而对儿童的保护措施,则根据儿童面临的危险程度分为紧急保护措施、家庭外安置措施、国家替代监护措施。两种类型的措施往往同时进行,以最大限度的帮助儿童回归家庭。第四章以国家干预措施的实施主体为研究对象,区分儿童保护机构和法院的不同角色和职能,指出儿童保护机构和法院在儿童虐待干预制度中存在的必要性。第五章针对我国儿童虐待国家干预现状的缺陷与不足,建议设立专职的儿童保护政府机构,加强对儿童的保护和对父母的帮助和监督,并在《民法典》的立法中完善未成年人监护制度,在《反家庭暴力法》的立法中完善针对儿童遭遇家庭暴力的干预制度,在条件成熟时制订专门的《儿童虐待防治法》。
[Abstract]:Child abuse is the general name for all kinds of children's interests, which are mainly manifested in four forms of physical abuse, neglect, sexual assault and emotional and mental abuse to minors under 18 years of age. The damage to the physical and mental health of children will impede the healthy development of children and damage the public interests of the country's future human resources. The state bears the responsibility and obligation to protect children. From the perspective of human rights protection, the state bears the obligation to respect, protect and realize basic human rights. The right to life and development of children is the basic right in the United Nations Convention on the rights of the child, and the right to exempt from all forms of violence is a derivative right on the basis of which the United Nations < children's rights. The primary responsibility of the State Party in the Convention on the rights of the child is to prevent and intervene in the behavior of all kinds of children. From the perspective of protection of interests, children are the main source of a country's future labor force. The development of children directly determines the level of the future human resources in a country. The intervention of the state to child abuse is both the right and the child. The protection of the personal interests of children is also the protection of the public interests of the state. The protection of children's interests is the value orientation of children's legislation. The interests of children protected by the laws of all countries include not only the survival of children, the physical integrity, but also the psychological, cognitive and emotional interests of children. The protection and Realization of children's interests is the state's dry interests. The ultimate goal of child abuse, the construction and implementation of the intervention system are all around the basic interests of children. The connotation and extension of the interests of children protected by law are the core factors that determine the method of legal protection. How to maximize the benefit of children in the state intervention system is the main problem in this paper. The comparative study method, through the in-depth comparison and analysis of the main body, procedure, conditions and relations of the specific intervention measures in different countries, reveals the core elements of the intervention system of child abuse in different countries, and provides the relevant basis for the construction of the intervention system of child abuse in China. The starting point of the legal system. The legal concept of "child abuse" contains both the criteria for the judgment of abuses, the basis for the initiation of state intervention and the interests of children protected by the law. The legal norms of "child abuse" in various countries are generally protected by the interests of the children, including the development of the children's body and cognition. Three aspects of development and social development. In the protection of children's interests, in view of the vulnerability and dependence of children, the rights of children are guaranteed mainly through parental care obligations and the supervision of the state. Because parents are the main body of child abuse, the main object of the state intervention is the parents, The main content of the state intervention system is made up of intervention measures for child abuse by parents. The national intervention measures are carried out around two aspects: one is the protection of children, the two is the help and supervision of parents. From the perspective of the needs of children, the survival of children is the basis for all other interests and guarantees the children. Personal safety is the lowest goal of state intervention. On the other hand, parents are the best people to realize the interests of children. Family is the best place to realize the interests of children. To help children return to normal families is the highest goal of state intervention. The intervention system of each country shows priority to help the supervisor parents and avoid the separation of parents and children to the maximum. The first chapter, in the first chapter, takes the connotation and protection methods of the interests of children as the breakthrough point, and through the summary of the historical track of the state involvement in parent-child relations, reveals the specific path of the state to restrict the behavior of parents, and the historical evolution of the legislation of parent-child relations. The trace reflects the principle of necessity and proportionality of the state's involvement in parent-child relations. The reasons for the efforts of the state to increase the protection of children are the changes in the social value of children. It is one of the basic responsibilities of the state to protect children from all forms of injury. The United Nations Convention on the rights and interests of children stipulates that the protection of children from the State Party is exempt from the consent of the State Party. The second chapter takes the concept of child abuse and the starting procedure of intervention as the research object. Through the analysis of the legal concepts of child abuse, it points out that the core elements of the intervention standards of all countries are the damage and degree of the interests of children. It includes both the substantial damage to the children and the risk of injury in the highly dangerous state of the child. Once the degree of child damage is in accordance with the national standard of intervention, the follow-up report, the investigation and evaluation procedure will be started. The third chapter takes the specific intervention measures of each country as the object of study, the object, function, and application of the intervention measures. According to the different objects, the intervention measures can be divided into parents' intervention measures and protection measures for children. The intervention measures of the parents include the help and support of parents, and the supervision of parents' behavior, and the goal of intervention is to help the parents to provide the children as much as possible. Appropriate care to help children return to their families. Protection measures for children are divided into emergency protection measures, family placement measures, and national alternative guardianship measures based on the risk of children. The two types of measures are often carried out at the same time to help the children to return to their families to the maximum extent. The fourth chapter is the implementation of the state intervention. The body is the research object, distinguishes the different roles and functions of child protection institutions and courts, points out the necessity of child protection institutions and courts in the system of child abuse intervention. The fifth chapter proposes the establishment of a full-time child protection government agency to strengthen the protection of children. With the help and supervision of the parents, and in the legislation of the civil code, the minors' guardianship system is perfected. In the legislation of the anti domestic violence law, the intervention system for children's domestic violence is perfected, and a special "child abuse prevention and control law" is formulated when conditions are ripe.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D998.2;D922.183
，
本文编号：2173438
[Abstract]:Child abuse is the general name for all kinds of children's interests, which are mainly manifested in four forms of physical abuse, neglect, sexual assault and emotional and mental abuse to minors under 18 years of age. The damage to the physical and mental health of children will impede the healthy development of children and damage the public interests of the country's future human resources. The state bears the responsibility and obligation to protect children. From the perspective of human rights protection, the state bears the obligation to respect, protect and realize basic human rights. The right to life and development of children is the basic right in the United Nations Convention on the rights of the child, and the right to exempt from all forms of violence is a derivative right on the basis of which the United Nations < children's rights. The primary responsibility of the State Party in the Convention on the rights of the child is to prevent and intervene in the behavior of all kinds of children. From the perspective of protection of interests, children are the main source of a country's future labor force. The development of children directly determines the level of the future human resources in a country. The intervention of the state to child abuse is both the right and the child. The protection of the personal interests of children is also the protection of the public interests of the state. The protection of children's interests is the value orientation of children's legislation. The interests of children protected by the laws of all countries include not only the survival of children, the physical integrity, but also the psychological, cognitive and emotional interests of children. The protection and Realization of children's interests is the state's dry interests. The ultimate goal of child abuse, the construction and implementation of the intervention system are all around the basic interests of children. The connotation and extension of the interests of children protected by law are the core factors that determine the method of legal protection. How to maximize the benefit of children in the state intervention system is the main problem in this paper. The comparative study method, through the in-depth comparison and analysis of the main body, procedure, conditions and relations of the specific intervention measures in different countries, reveals the core elements of the intervention system of child abuse in different countries, and provides the relevant basis for the construction of the intervention system of child abuse in China. The starting point of the legal system. The legal concept of "child abuse" contains both the criteria for the judgment of abuses, the basis for the initiation of state intervention and the interests of children protected by the law. The legal norms of "child abuse" in various countries are generally protected by the interests of the children, including the development of the children's body and cognition. Three aspects of development and social development. In the protection of children's interests, in view of the vulnerability and dependence of children, the rights of children are guaranteed mainly through parental care obligations and the supervision of the state. Because parents are the main body of child abuse, the main object of the state intervention is the parents, The main content of the state intervention system is made up of intervention measures for child abuse by parents. The national intervention measures are carried out around two aspects: one is the protection of children, the two is the help and supervision of parents. From the perspective of the needs of children, the survival of children is the basis for all other interests and guarantees the children. Personal safety is the lowest goal of state intervention. On the other hand, parents are the best people to realize the interests of children. Family is the best place to realize the interests of children. To help children return to normal families is the highest goal of state intervention. The intervention system of each country shows priority to help the supervisor parents and avoid the separation of parents and children to the maximum. The first chapter, in the first chapter, takes the connotation and protection methods of the interests of children as the breakthrough point, and through the summary of the historical track of the state involvement in parent-child relations, reveals the specific path of the state to restrict the behavior of parents, and the historical evolution of the legislation of parent-child relations. The trace reflects the principle of necessity and proportionality of the state's involvement in parent-child relations. The reasons for the efforts of the state to increase the protection of children are the changes in the social value of children. It is one of the basic responsibilities of the state to protect children from all forms of injury. The United Nations Convention on the rights and interests of children stipulates that the protection of children from the State Party is exempt from the consent of the State Party. The second chapter takes the concept of child abuse and the starting procedure of intervention as the research object. Through the analysis of the legal concepts of child abuse, it points out that the core elements of the intervention standards of all countries are the damage and degree of the interests of children. It includes both the substantial damage to the children and the risk of injury in the highly dangerous state of the child. Once the degree of child damage is in accordance with the national standard of intervention, the follow-up report, the investigation and evaluation procedure will be started. The third chapter takes the specific intervention measures of each country as the object of study, the object, function, and application of the intervention measures. According to the different objects, the intervention measures can be divided into parents' intervention measures and protection measures for children. The intervention measures of the parents include the help and support of parents, and the supervision of parents' behavior, and the goal of intervention is to help the parents to provide the children as much as possible. Appropriate care to help children return to their families. Protection measures for children are divided into emergency protection measures, family placement measures, and national alternative guardianship measures based on the risk of children. The two types of measures are often carried out at the same time to help the children to return to their families to the maximum extent. The fourth chapter is the implementation of the state intervention. The body is the research object, distinguishes the different roles and functions of child protection institutions and courts, points out the necessity of child protection institutions and courts in the system of child abuse intervention. The fifth chapter proposes the establishment of a full-time child protection government agency to strengthen the protection of children. With the help and supervision of the parents, and in the legislation of the civil code, the minors' guardianship system is perfected. In the legislation of the anti domestic violence law, the intervention system for children's domestic violence is perfected, and a special "child abuse prevention and control law" is formulated when conditions are ripe.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D998.2;D922.183
，
本文编号：2173438
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