Study On Legislation Of Same-sex Union In China

The histroy of homosexual minor-culture is almost as long as hunman cuture. A great deal of investigation shows that there is a quantity of fixed rate of homosexuality that accounts for 2-5% among the adults in the society of different areas, systems or cultures. Although the absolute number of the homosexuality is large, they usually live under the shade of bias, discrimination or even persecution of the public and government. Along with the continuing development of human society, the homosexual phenomenon is gradually being accepted all over the world. In western countries, homosexualities had experienced a progress of four periods, from criminalization to non-criminalization but be regarded as abnormality and morbidity then to the period that they were considered to be a community with normal sexual tropism, finally they reached a fourth phrase in which same-sex union are legalizationed. Homosexualities in China had experienced a hard progress of criminalization——non-criminalization——non-pathological——humanization too. In recent years, homosexual liberation movements went stronger and stronger in western countries. same-sex union had been legalized in Most of these countrise. Even in Asia, homosexual partners in Japan and Taiwan area can get legal status. Legalization of same-sex union is a development trend of marriage and family law in worldwide. As liberty, equality and human rights had been written into our constitution today, our country have to envisage the question. Although our current laws show tolerant attitude towards homosexuality, the legislation of same-sex union is still blank, the right and interest of the homosexual partners can not be well ensured.The foreign scholars have studied it for centuries, a lot of bookmakings on medical science and sociology had been published since 19th century which actively changed the society's opinion to homosexuality and improved the homosexual's legalwelfare. Particularly after 20 centuries 30's, Equal rights of homosexuality become a hot topic between scholars of constitutional academe in western countries. A subject named "homosexual law" which takes homosexuality as a main research object came out even then. The academe of marriage family law had already studied on the subject in-depth too. While, in China, it is only years ago for he scholars of medical science and sociology to study on the homosexuality phenomenon, and the research which have been done by scholars on science of law was even rarer. There are only few scholars such as Zhou Dan, Guo Xiaofei, Xu Guodong did some relevant studies in their works. Although Li Yinghe had put forward the proposal of same-sex marriage for many times, and there are also few related essays can be seen in various law periodicals , there is hardly any monograph on same-sex union here in China. It is not difficult to see , the research in China falls behind that comparing with the American and European countries. Consequently, the author consulted the relevant instance of legislation in TaiWan area and foreign countries then bring forward a suitable system of same-sex union for China based on the study fruits of medical science,anthropology and sociology, with expectation that it can draw attention of the scholars on science of law and give my strength to help the study on same-sex union in China.The methodologies of the thesis included literature analysis and comparative legal perspective. In order to grasp the social contexts in our country concerning same-sex union, the author also interviewed a few people in the homosexual community and did some research on internet, besides referring to other empirical studies.The thesis includes four parts: (except for the foreword and the tag)In the first part, the author simplely introduced the conception of homosexuality and same-sex union, basing on this, the author did some investigation by questionnaire on the living condition and the willing to unite legally of the homosexual community in Chengdu, Guangzhou and Hangzhou. This part aimed at helping people build up the correct conception towards homosexuality and let people know about their life styles and wishes. Then the author investigated whether homosexual partners have the needs and wishes to unite legally. Only if they have the needs, the legislation of same-sex union would have value to exist.The second part of the thesis analysed the necessity, the obstacle and the feasibility of the legislation for same-sex union. The author thought the absence of same-sex union system have caused many serious social problems, in face of the social problems, our legislative must take some actions. The tolerant histroy in our country and the development of human rights,family conception and moral conception provide the feasibility for the legislation of same-sex union. The appeal of uniting legally is bring forward involuntary, approbating the legal status of homosexual partnership temporizes the law of development. Our country will legislate for it sooner or later.In the third part, the author consulted the relevant instance of legislation in Holand, Belgium, Germany, France, England, American, Canada and refered to professor Michael Coester's method which classified the same-sex uniting modes to four categories, Then commented on the uniting modes in the whole world.The last part of the thesis is about the countermeasure for China. The author made an investigation on the relevant legislation and put forward a system for same-sex union. The author believed that in face of the resistance brought by traditional conception, we should steer clear of the marriage law, and interpret the sexual autonomous right and family right of constitutional rights to establish the constitutional status of homosexual partners. When the civil code amend in the future, the legislator could adopt the mode of cilvil union to ensure their material family rights.