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Jurisprudential Thinking On The Involvement Of Public Power In Domestic Violence

Posted on:2017-01-21Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y H LiuFull Text:PDF
GTID:1106330488955060Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Family is a hotbed for human survival and development where we spend most of our time and are familiar most. Family is also regarded as a harbor for emotion relief,confliction and defeat avoiding. Generally, family life ought to be intimate as well as tender for human’s safety. However, violence in family not only puts threats to victims, but also affects life quality of a family. Improper recognition of violence and male-dominated ideology in whole society mainly accounts for helplessness and isolation position of the vulnerable group in domestic violence.Domestic violence is the most common behavior of human right violation existing variously in world. Damaging victims’ physical and mental health enormously, domestic violence violates human’s health right and basic free right. It tramples on human civilization. On Dec 27,2015, Tenth meeting of the Standing Committee of the Twelfth National People’s Congress passed Anti-domestic Violence Law of the People’s Republic of China, which makes it clear that domestic violence refers to physical and mental infringement behavior such as fighting, kidnapping,hurting、restriction of personal freedom, threatening among family members. Violence among those living together can be judged according to the law.Traditionally, people used to talk about marital violence. In fact, domestic violence includes not only marital violence, but also relative violence(e.g. Fratricide),child and the old abuse. The female becomes the majority in marital violence while proportion of the male and female varies little in other violence. Five chapters are included in this paper as following:Domestic violence situation is introduced in first chapter. Based on analysis of international legal documents and the understanding and laws for domestic violence in various countries, this paper demonstrate the identity specificity, form diversity,dangers,social tolerance, concealment, illegality and inverter of domestic violence.Further, it analyzes its influence on victims、teenagers、the family、society as well asabusers. Finally, it explores reasons for domestic violence from perspectives of tradition、feminism、law and the characteristics of abusers.The second chapter describes the history of public power intervention from perspective of social necessity in domestic violence. The paper defines the concept of public power and explores the history of anti-domestic violence holding that the transformation of domestic violence from personal affairs to social problems lie in human civilization development. Through legislation, administration and judicature,the nation intervenes in personal affairs with Alternatives to protect interests and rights of the vulnerable groups. The modern social family law begins to respect conciliation between families autonomy and proper public power intervention. Family governance refers to exclusion of unnecessary law intervention meaning limitation should be conducted in terms of public power intervention in domestic violence. At present, both international and national public power implements comprehensive intervention in domestic violence in order to protect interests of the vulnerable groups. Obstacles and questions exist in traditional family autonomy theory and theory of public and private law division for intervention in domestic violence.Intervention of public power in domestic violence unavoidably violates autonomous rights of victims and conflicts with protection of private rights. However, if measures are taken to prevent domestic violence, loss becomes certain. Majority of victims cannot prevent abusers by themselves, and intervention of public power greatly decreases the happening of domestic violence.The third chapter mainly accounts for power intervention in domestic violence.As the strongest national pubic power, what are reasons for its intervention in domestic violence? Political and legal philosophy provides evidence for it. From perspective of The Social Contract, combined with Veil of Ignorance Theory and Three Persons Theory, this paper verifies the legitimacy of public power intervention in domestic violence. It argues the moral justice of anti-domestic violence law from perspective of utilitarianism. It demonstrates that violence violates the basic compulsory norm of “not harming others” from perspectives of human rights, women rights, children rights, etc. In order to respect and protect human rights, the nationmust intervene in domestic violence. Based on “harming principle”, public power obtains its legitimacy in intervention in domestic violence. Domestic violence contains real dangers for other people and causes harms to others, so to protect victims’ interests and social public interests, public power must be implemented to control this sort of behavior. Additionally, this paper discusses principle of “May the person not suffers” which only applies to individual with complete ability of civil act.For those with incapable of disposing or limited capability of disposing, the society shall adopt the best interest doctrine to provide compulsory protection.The forth chapter demonstrates forms of public power intervention in domestic violence. Due to its necessity and legitimacy, then what kinds of forms should the nation adopt to intervene in domestic violence? With regards to legislation, the nation shall intervene in domestic violence in form of legislation instead of moralization.From aspects of time version and various legislation levels, the paper describes legislation situation for domestic violence in China and discusses the new published Anti-domestic Violence Law of the People’s Republic of China pointing out the social foundation for law-making and its significance as well as shortcomings. Police power with its particularity is vital for intervention in domestic violence. It is essential to understand the role of police power in domestic violence intervention, strengthen educational training for police office and improve their knowledge of domestic violence danger avoiding inaction problems. In terms of judicature, this paper points out shortcomings of judicature in intervention of domestic violence and explores several key problems including protection system, definition of legitimate defense and perfection of evidence rule. As far as social intervention, the national public power and society ought to take responsibility of anti-domestic violence together. It is of great importance to set up integrated domestic violence administration internet and clarify respective duty of different institutions such as judicial authority 、 police office、social service agencies、medical institutions and so on. Protection of female victims must stick to principles of respecting human dignity, responsible caring and social responsibility.The fifth chapter discusses limitation of public power intervention in domesticviolence. Since boundary exists in execution of any power, so does public power intervention in domestic violence. The reason for paying attention to its limitation lies in its coerciveness and the possibility of being abused. National intervention in domestic violence shall observe some practical as well as formal principles. Practical principles include those of justice, family autonomy, respect for human dignity and utilitarianism. Formal principles include those of government by law, rationality,proportion and responsibility.
Keywords/Search Tags:Domestic Violence, Public Power, Legitimacy, Limitation
PDF Full Text Request
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