民事保护令—家庭暴力受害人的事前法律救济
发布时间：2019-01-22 20:28
【摘要】： 国外许多研究机构和团体的调查分析表明:家庭暴力是一个跨越国界、意识形态、阶级、种族的全球性问题,妇女和儿童是家庭暴力的主要受害者。我国的家庭暴力现状也不容忽视。家庭暴力一直存在于社会学家和法学界人士的研究视野。自1995年联合国第四次世界妇女大会召开以来,这一问题更成为了各国政府及非政府组织所关注的焦点。从实践调查和学术研究的维度来看,国内学界对家庭暴力问题的探讨主要集中在心理学、社会学、人口学和自由女权主义等角度及层面,也有一些学者从法哲学、法社会学和法伦理学等视角审视家庭暴力问题,并就如何防治家庭暴力,尤其是如何救济家庭暴力受害人等方面作了许多有益的法律思考。这些研究对于我们进一步探索家庭暴力受害人的保护机制无疑意义重大。但是,对于在家庭暴力发生前如何更好地保护潜在的受害人,以及在家庭暴力发生过程中如何对受害人实施救助以使损害后果降低等方面论及不多,从制度层面进行设计则更少。 众所周知,防治家庭暴力既需要有事后惩罚和救济,又要注重事前预防和干预,从社会成本来看,事前预防及干预机制的建构意义更大。本文在分析我国大陆反家庭暴力法律实践的基础上,认为对家庭暴力行为人的惩罚和对受害人的救济手段比较完备,但是,如何有效预防家庭暴力,以及如何有效救助家庭暴力受害人却缺乏事前救济制度的考量。在考查分析美国、英国、澳大利亚、日本、加拿大以及我国台湾地区、香港地区等国家或地区对于家庭暴力事前干预的法律实践和制度创新过程中,发现这些国家和地区实施的“民事保护令制度”对于有效救济家庭暴力受害人效果显著。虽然不同国家和地区婚姻家庭法律制度和文化不尽相同,但家庭暴力的表现形式和后果却具有惊人的相似性,构建民事保护令制度对于中国大陆完善反家庭暴力法律体系是可行的。 论文首先分析探讨我国大陆反家庭暴力的法律实践及机制缺失,引出我国对如何有效预防家庭暴力问题、如何有效救济家庭暴力受害人缺乏事前救济制度的思考。在着重分析、比较考查美国、英国、澳大利亚、日本、加拿大以及我国台湾地区、香港地区等国家或地区在这一问题上的法律实践和制度创新的基础上,深入论证我国大陆借鉴和构建民事保护令制度的理论基础(价值依据),最后参酌我国国情提出构建我国大陆民事保护令制度的具体建议。
[Abstract]:The investigation and analysis of many foreign research institutions and groups show that domestic violence is a global problem that transcends national boundaries, ideologies, classes and races, and that women and children are the main victims of domestic violence. The present situation of domestic violence in our country should not be ignored. Domestic violence has always existed in the research field of sociologists and jurists. Since the fourth World Conference on Women was held in 1995, this issue has become the focus of attention of governments and non-governmental organizations. From the perspective of practical investigation and academic research, domestic scholars mainly focus on the issues of domestic violence from the perspectives and levels of psychology, sociology, demography and liberal feminism, and some scholars also focus on the philosophy of law. From the perspective of sociology of law and legal ethics, this paper examines the problem of domestic violence, and makes a lot of useful legal considerations on how to prevent and cure domestic violence, especially how to relieve the victims of domestic violence. These studies are of great significance for us to further explore the protection mechanism of victims of domestic violence. However, there is little discussion on how to better protect potential victims prior to the occurrence of domestic violence and how to provide relief to victims in the course of domestic violence in order to reduce the consequences of damage, Design from the institutional level is even less. As we all know, prevention and treatment of domestic violence need not only punishment and relief after the event, but also pay attention to prevention and intervention in advance. From the social cost, the construction of pre-prevention and intervention mechanism is more significant. Based on the analysis of the legal practice of anti-domestic violence in mainland China, this paper thinks that the punishment of the perpetrators of domestic violence and the relief means to the victims are relatively complete, but how to effectively prevent domestic violence, And how to effectively rescue victims of domestic violence but lack of prior relief system. In the course of examining and analyzing the legal practice and institutional innovation of countries or regions such as the United States, the United Kingdom, Australia, Japan, Canada, Taiwan, Hong Kong, and other countries or regions that intervene in domestic violence in advance, It is found that the civil protection order system implemented in these countries and regions has a remarkable effect on the relief of victims of domestic violence. Although marriage and family legal systems and cultures vary from country to country and region, the manifestations and consequences of domestic violence are surprisingly similar, The establishment of civil protection order system is feasible for improving the anti-domestic violence legal system in mainland China. Firstly, this paper analyzes and discusses the lack of legal practice and mechanism against domestic violence in mainland China, which leads to the consideration of how to effectively prevent domestic violence and how to effectively relieve the victims of domestic violence without prior relief system. On the basis of analyzing and comparing the legal practice and institutional innovation of the United States, the United Kingdom, Australia, Japan, Canada, Taiwan and Hong Kong on this issue, The theoretical basis (value basis) of the civil protection order system in mainland China is discussed in depth. Finally, some concrete suggestions on the civil protection order system in mainland China are put forward according to the national conditions of our country.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D913.9
本文编号：2413539
[Abstract]:The investigation and analysis of many foreign research institutions and groups show that domestic violence is a global problem that transcends national boundaries, ideologies, classes and races, and that women and children are the main victims of domestic violence. The present situation of domestic violence in our country should not be ignored. Domestic violence has always existed in the research field of sociologists and jurists. Since the fourth World Conference on Women was held in 1995, this issue has become the focus of attention of governments and non-governmental organizations. From the perspective of practical investigation and academic research, domestic scholars mainly focus on the issues of domestic violence from the perspectives and levels of psychology, sociology, demography and liberal feminism, and some scholars also focus on the philosophy of law. From the perspective of sociology of law and legal ethics, this paper examines the problem of domestic violence, and makes a lot of useful legal considerations on how to prevent and cure domestic violence, especially how to relieve the victims of domestic violence. These studies are of great significance for us to further explore the protection mechanism of victims of domestic violence. However, there is little discussion on how to better protect potential victims prior to the occurrence of domestic violence and how to provide relief to victims in the course of domestic violence in order to reduce the consequences of damage, Design from the institutional level is even less. As we all know, prevention and treatment of domestic violence need not only punishment and relief after the event, but also pay attention to prevention and intervention in advance. From the social cost, the construction of pre-prevention and intervention mechanism is more significant. Based on the analysis of the legal practice of anti-domestic violence in mainland China, this paper thinks that the punishment of the perpetrators of domestic violence and the relief means to the victims are relatively complete, but how to effectively prevent domestic violence, And how to effectively rescue victims of domestic violence but lack of prior relief system. In the course of examining and analyzing the legal practice and institutional innovation of countries or regions such as the United States, the United Kingdom, Australia, Japan, Canada, Taiwan, Hong Kong, and other countries or regions that intervene in domestic violence in advance, It is found that the civil protection order system implemented in these countries and regions has a remarkable effect on the relief of victims of domestic violence. Although marriage and family legal systems and cultures vary from country to country and region, the manifestations and consequences of domestic violence are surprisingly similar, The establishment of civil protection order system is feasible for improving the anti-domestic violence legal system in mainland China. Firstly, this paper analyzes and discusses the lack of legal practice and mechanism against domestic violence in mainland China, which leads to the consideration of how to effectively prevent domestic violence and how to effectively relieve the victims of domestic violence without prior relief system. On the basis of analyzing and comparing the legal practice and institutional innovation of the United States, the United Kingdom, Australia, Japan, Canada, Taiwan and Hong Kong on this issue, The theoretical basis (value basis) of the civil protection order system in mainland China is discussed in depth. Finally, some concrete suggestions on the civil protection order system in mainland China are put forward according to the national conditions of our country.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D913.9
【引证文献】
相关期刊论文 前1条
1 薛宁兰;胥丽;;论家庭暴力防治法中的民事保护令制度[J];中华女子学院学报;2012年04期
相关硕士学位论文 前4条
1 罗魏斌;我国民事保护令程序的前瞻性研究[D];湘潭大学;2010年
2 陆娴;论我国家庭暴力民事保护令制度之构建[D];中央民族大学;2012年
3 胥丽;民事保护令制度之探究[D];中国社会科学院研究生院;2012年
4 龙良碑;我国设立民事保护令制度问题研究[D];中南大学;2012年
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