Research On The Legal Regulation Of Institutionalized Discrimination

Human’s pursuit of equality is the symbol as well as the driving force of thesocial development. Discrimination is beyond doubt the biggest obstacle on ourjourney of aspiring after and realizing equality. Equality and anti-discrimination, in asense, fall within the scope of the same category. It is necessary for us to investigatediscrimination comprehensively from multiple perspectives because discriminationwas born in the beginning of human society and lived in different domains of oursocial life in various forms. Discrimination exists in the form of human’s behavior aswell as institutions. Western countries have been focusing on institutionalizeddiscrimination and the subject of their research on anti-discrimination law is theinstitutionalized discrimination represented by legislative discrimination. However,domestic research has been centering on the discriminative behaviors amongindividuals and neglecting institutionalized discrimination because of the loyalty ofour traditional culture to institutions and power. With the deepening of our socialreform, it is gradually unfolded that the discrimination on civil rights hides in ourhousehold registration system, social security system, public education system,marriage system and our enrollment, examination and assessment system of publicemployees, which caused tense relations between citizens and state organs within acertain range. As a matter of fact, institutionalized discrimination brings more seriousresults than simple behavior of discrimination does in the issues of violating civilequal rights and social justice as well as the subsequent social conflict and illegalsolutions to them. Therefore, this thesis takes the legal regulations of institutionalizeddiscrimination as the subject matter in order to promote the healthy development ofthe relations between citizens and state organs as well as to realize the strategic goalof constructing harmonious socialist society. Based on the analysis of the connotation,type and cause of institutionalized discrimination, the thesis aims to probe into thelegal regulations of institutionalized discrimination, widen the horizon of research onanti-discrimination law and seeks the approach to implementing the constitution natured as socialism with Chinese characteristics.The thesis discusses the legal regulations of institutionalized discrimination fromfive aspects, namely, the basic position, the type, the cause, the judicial regulations,and the legislative regulations of institutionalized discrimination.First, the thesis defines institutionalized discrimination as continued, general, andnormalized unreasonable treatments which are recognized by laws and regulations orexercised through public bodies to certain social groups. The study of institutionalizeddiscrimination in China is developed because we have different definition ofdiscrimination from that of western countries and institutionalized discrimination hasvast living space due to the excessive dependence of constructional rules of lawdevelopment approach on institutions. Institutionalized discrimination consists ofthree elements: implementation by public power organs; existed in the form ofinstitution; unreasonable and unfair treatments. Compared with ordinary behavior ofdiscrimination, institutionalized discrimination can be characterized as beingmandatory, collective，stable，formally legal and be featured as legitimacy created inspecial background. The thesis also makes contrastive analysis of institutionalizeddiscrimination and public law discrimination,discrimination behaviors and inversediscrimination.Second, the thesis divides the types of institutionalized discrimination from theempirical perspective. Through the analysis of institutionalized discrimination ofvarious types in social life, the thesis classifies institutionalized discrimination fromthe perspective of existing form, types of tort and subject of tort，as the formalinstitutionalized discrimination (a case study of homosexual discrimination in rule),the informal institutionalized discrimination(a case study of educational qualificationdiscrimination in the enrollment, examination and assessment system of publicemployees); the institutionalized discrimination of civil rights(a case study of privacydiscrimination in the permanent announcement system of the information of basicliving allowances), the institutionalized discrimination of political rights(a case studyof the institutionalized discrimination in election system), the institutionalizeddiscrimination of social rights(a case study of the institutionalized discrimination of rights to education in the admissions system of college entrance examination);theinstitutionalized discrimination in legislative system(a case study of the sexdiscrimination in Article236in Criminal Law), the institutionalized discrimination inadministrative organs (a case study of the institutionalized discrimination in basicpublic service in household registration system), and the institutionalizeddiscrimination in judicial organs(a case study of identification discrimination injudicial interpretation).Third, the thesis analyses the reasons of the institutionalized discrimination fromthe perspective of value judgmental reason, historical reason and direct reason,concluding that the reasons could be summarized as realistic and historical ones, orsubjective and objective ones. The value judgmental reason for the institutionalizeddiscrimination is the vagueness of equality principle and the openness of equal rights,the historical reason is the deletion of right culture and distorted development of thesociety focusing on status, and the direct reason is the recognition of holders of publicpower for social discriminating phenomena, policy concerns of public power andillegal abuse of public power. The above analysis is not meant to emphasize theimportance of each element functioning in the process of the institutionalizeddiscrimination, instead, attempts to highlight the complexity and comprehensivenessof the reasons.The foregoing is about the main content of the institutionalized discrimination,which constitutes the premise for the legal regulation of institutionalizeddiscrimination. The thesis continues to investigate the specific rules and regulations inthe legal regulation of institutionalized discrimination, from the perspective of judicialregulation and legislative regulation and aims to construct a very complete system ofthe legal regulation of institutionalized discrimination from the study of relevantregulations.As to the study of judicial regulation in the institutionalized discrimination, thethesis takes administrative litigation as the breakthrough point, because it is animportant carrier of system to protect the basic rights of citizens, as one importantconstituent of the implementation system of our constitution. The thesis concludes that the judicial regulation in the institutionalized discrimination provides a chance forthe reform of our administrative litigation. In regard to the scope of accepted cases,we should adopt new standard of implementation of administrative power plusviolation of legal rights rather than the old standard of specific administrativebehavior plus violation of personal rights and property rights. As for the limit ofjudicial regulation, administrative litigation should avoid adopting either judicialrefrain or judicial activism, but take the approach of judicial activism to achieve thebest result of judicial review on the basis of adhering to the concept of judicial refrain.The thesis investigates the filing and inspecting system and submitting andinspecting system on the basis of defining the connotation and scope of the legalregulation of institutionalized discrimination. It is concluded that the currentlegislative supervision system still takes maintaining the objective legal order as thesupreme goal which is reflected by legislative regulations and specific legislativesupervision practice. However, the purpose of the legislative regulation ofinstitutionalized discrimination is steered gradually from maintaining the objectivelegal order to guaranteeing the basic rights of common citizens. Therefore, the presentresearch redesigns the current filing and inspecting system and submitting andinspecting system, centering on the inspecting scope, standard and procedure. Basedon the foregoing analysis, it is put forward that, as for filing and inspecting system,new inspecting standard with focus on equal right inspecting should be established,adjudicative mechanism is introduced to resolve the conflict between filing andinspecting，inspecting procedure should be improved．However, the submitting andinspecting system requires that on the premise of establishing the inspecting standardwith focus on equal right inspecting, the range of the inspecting body should bedetermined, the starting mechanism of the submitting and inspecting system ofinstitutionalized discrimination should be reformed and more democracy should bebestowed to the submitting and inspecting system.