On Regulating Gender-based Domestic Violence In Civil Law System

Gender-based domestic violence mainly happed between husband and wife,which is the means and way for males to control females,and is a serious violation of female humane rights.Different from violence happened in public sectors such as war,for the reason that domestic violence happened in so-called private sector,families,law or politics is unwilling to intervene so much.Nevertheless,if the state is indifferent,tolerant,or even indulges the domestic violence,the power to threaten women's right is to be strengthened,the unequal phenomena between man and woman in society and family will be covered,and the justice will not be realized.Therefore,state should be liable for the social convention and cultural structure which make woman to stay in a weak position under private power system permanently.In 1993,UN Declaration on the Elimination of Violence against Women first made it clear that state has the liability in the aspects of human rights to prevent violence between different sexes and solve the violence.Afterwards,Nov.25^th of each year is determined as the "International Day to Eliminate Domestic Violence".Of all the measures carried out by the state to eliminate domestic violence,law is the important one.Committee on Eliminating Discrimination on Woman suggests that in every country,"if domestic violence occurs, criminal penalty or civil compensation should be applied when necessary."Untill 2006,there are 89 countries and areas promulgated some kinds of law to ban domestic violence.60 countries enact special laws.Meanwhile,more and more countries constitute demarches to end violence against women.Comparing to 2003(only 45 countries made law against domestic violence),more special laws have been in the world.Even though,domestic violence still repeatedly occurs.That means,more attention should be put on legislation and judicial practice.The papar sets its foot on gender theory,sets gender-based domestic violence as its object,puts forword the value orientation and function of anti-domestic violence law, promotes the development of Chinese anti-domestic violence through comparing the legislation and judicial practice between U.S.and China.The whole thesis consists of seven chapters besides introduction and conclusion,about 170 thousand words approximately. Chapter?is titled as the concept of domestic violence.In general,violence means that abuser uses the force to harm other' s body and property.Then,this concept had been widened.Violence only used through verbal abusing was included in this concept.After the enactment of amendment of Marriage Law in 2001,the concept of domestic violence interpreted by the Supreme People's Court has often used in judicial practice.But,many different opinions about this concept had been put forward by scholars.After the comparing this concept in U.S.,the author suggests that the object of domestic violence should including the right of body and property.The behavior of violence should be made actively.And,the standard of result should be more low.Chapter?is titled as the human rights basis to prevent domestic violence.For gender-based domestic violence is the offence on female humane rights,human rights framework is the basis of violence research concerning gender.In this section,the author first analyzes the concept of common humane rights,and the concept of female human rights as special human rights.Second,the author analyzes the reason why the traditional law did not regulate domestic violence.The main reason is the tradition to discriminate public and private sectors.Every thing happended in the family should be regulated by law.The feminists criticize this tradition by emphasizing the importance of family and adverse influence on women.Every government must take on the duty to regulate the illegal behavior happened in family.In the end,the author analyzes the history of UN human rights agency intervening domestic violence.From 1980s,after three stages,UN finally determine that domestic violence is the act violating female humane rights firstly,and explain it as "gender-based violence".By this way,in international human rights sector,all work against domestic violence should focus on gender equality.Chapter?is titled as interpretation of gender-based domestic violence.In first section,the author point out that gender is created by feminist to deal with the real inequality between men and women.This word means that the weak position of women is formed by social cultures not their sex.Then,the author discusses the meaning of gender in legal research.In second section,the author analyzes the power in marital relationship and its nature.In modern society,the marriage has always been seen as a contract.In theory,the contract should be made by two persons with equal strength.But,it is not means that two persons with unequal strength could not finish one contract.But,the relationship between them will be power-based relationship.This conclusion also applys to marriage finished by unequal men and women.In this marriage,man always is winner.In third section,the author analyzes the nature of gender-based domestic violence.Violence is the tool of winner to keep the power on the loser.Therefore,the gender-based domestic violence is the tool of winner to keep the power coming form the gender.Chapter?is titled as the value orientation and function of domestic violence code. The author believes,law is the doctrines of rights,and justice is the logical basis for rights. Therefore,justice should be the basis value for domestic violence legislation.In theory,the value of justice had been divided into two parts,distributive justice and corrective justice.The meaning of distributive justice in family is promoting equality between husband and wife. The meaning of corrective justice is relief the victim.In second section,the author puts forward two kinds of functions following the value of justice.One function is low-class function.The meaning of this function based on the value of corrective justice is relieving the victims and punishing the abuser.Second function is high-class function.The meaning of this function based on the value of distributive justice is endowing the rights to victims.Chapter?is titled as the comparison between Chinese substantive law and U.S. substantive law regulating the domestic violence.This chapter includes four sections.In first section,the author concludes that the illegality is the basis of domestic violence to be seen as tort.In second section,the author suggests that domestic violence tort has three kinds of natures,continuous tort,tactical tort and abusing preponderant position tort.In third section, the author analyzes the constitutive requirements of domestic violence tort.In Chinese law, intentional tort has four constitutive requirements.In U.S.law,the situation is different because there are several causes of action of domestic violence tort.The author analyzes three main causes,battery,assault and intentional infliction of emotional distress.In fourth section, the author analyzes the compensation of domestic violence tort.Modern tort law targets for compensation of the damages.Therefore,as to tort damage,compensation for damages is the prime remedy.This is also the common point between Chinese law and U.S.law.But,U.S. civil law practice also imposes punitive damage on the abused.The author believes,as to domestic violence tort,there's little function for compensative damage.The reason is that the abuser always escape from compensation by opportunism.Therefore,the compensative damage is a kind of institutional arrangement to the abused benefits from the practical effects. Punitive damage puts the damage compensation into a new view of extending it to the third part and social interests which may be effected by tort,advocating a retaliation,that is,no one has the right to ask others give up their right or force others giving up rights without others consent,and exchange for his own power,even it meets economic benefits,it violates moral concepts.Therefore,punitive damage does better to meet the concept of protecting female humane rights.Chapter?is titled as comparison between Chinese procedure law and U.S.In first section,the author analyzes some action of divorce resulted by domestic violence in China. The author concludes that the victims can not be protected by general proceeding since the judge does not consider the particular points of domestic violence.In second section,the author analyzes the civil protection order proceeding in U.S.After 1994,all states and Washingon D.C.enacted the law providing that the victims of domestic violence may directly apply the court for civil protection order to protect their interests.The author fully introduces and analyzes the concept,characteristics,applying fields,gaining,delivering,executing procedure of civil protective order,and the liability against it.At last,the author analyzes and reviews the general civil proceeding and civil protection order proceeding from three perspectives,the needs of victims,the relief of rights and gender equality.In third section,the author compares and analyzes the procedure of divorce and civil protection order.Chapter?is titled as suggestions about how to perfect civil law regulating domestic violence in China.All the suggestions are based on the works of scholars.In first section,the author analyzes the idea and mode of legislation.There are two ideas about how to restrict personal violence.The first one is using public power to restrict personal violence.The second one is using personal rights to restrict personal violence.As to the mode of legislation, the author suggests that we should select the special mode.This mode has already accepted and used by UN and the countries with domestic violence laws.In second section,the author suggests that we should destroy the foundation of gender power.Then,we may improve the situation of victims by using some particular regulations.The innovations of this thesis are following as:First,this thesis analyzes the concept of domestic violence based on comparing the law and acts of U.S.Second,this thesis analyzes the unequal relationship between married couple from the perspective of gender.Third,this thesis analyzes the relationship between power and violence,power between married couple and gender-based violence. Fourth,this thesis analyzes the tort compensation between married couple from the perspective of gender.Firth,this thesis compare and analyze the divorce procedure and civil protection procedure.