On The Reasonable Limits Of Public Power Intervention In Domestic Violence From The Perspective Of International Human Rights Law

Domestic violence is a universal human rights issue in ancient and modern China and abroad.The World Health Organization attempts to define domestic violence.The Committee on the Elimination of Discrimination against Women is committed to protecting women who are victims of domestic violence.Scholars such as Huang Lie strive to promote the government's process of preventing domestic violence.Domestic violence not only violates the victim's right to health and fundamental freedoms,but also tramples on human civilization.Theoretical research and practical experience show that public power intervention is a good way to prevent domestic violence.The vigorous development of the human rights movement and the growing awareness of anti-domestic violence,the definition of domestic violence in the laws of countries and regions has convergence,which provides realistic conditions for public power intervention.The social contract theory and the principle of non-injury provide a theoretical basis for public power to intervene in domestic violence,according to these two theories,the state's public power comes from people's entrustment and must not be arbitrarily interfered.However,in practice,public power is expansive,and its improper intervention is easy to infringe on private rights.Therefore,it is necessary to formulate a reasonable boundary for public power to intervene in domestic violence and to solve the problem of unclear boundaries in public intervention in domestic violence.Public power mainly interferes with domestic violence through prevention,disposal and relief measures.Therefore,this paper attempts to discuss the feasibility of formulating public power to intervene in the reasonable boundary of domestic violence from these three aspects.In the prevention stage of domestic violence,the rational boundary of public power intervention in domestic violence should be based on the qualitative criteria of domestic violence,and its essence is to delineate the reasonable boundary with family autonomy.According to international human rights law,family autonomy is the legal right of every family member and is generally not subject to outside interference.However,family disputes in family autonomy may rise to domestic violence.Throughout the model of public power intervention in domestic violence,almost all countries adhere to the red line of family autonomy,and insisting that public interest is the specific standard for public power to intervene in domestic violence.Domestic violence will inevitably violate the basichuman rights such as the victim's right to life and personal security.If domestic violence is allowed to occur,then violence will be allowed and social order will be severely damaged,which will inevitably harm the public interests.In the stage of domestic violence,the state has always adhered to the principle of protecting victims and severely cracking down on perpetrators,but even the perpetrators have basic human rights and are legally protected by human rights law.Public power should be in the process of intervening in domestic violence.Focus on the reasonable boundaries of intervention and define the limits of protection for the weak.The protection of the weak has a solid foundation of international human rights law,and the state's public power should assume the obligation to protect the weak.In order to maintain social equity,public power should actively intervene in domestic violence and protect the weak,such as women and children,in order to safeguard their dignity and equal interests.However,the protection of the weak should follow the principle of proportionality.Especially in the field of anti-domestic violence,we should pay attention to the importance and necessity of measures to interfere with domestic violence and the importance and urgency of protecting legal interests.In the relief phase of domestic violence,the practical problem is how to blame the state intervention for improper intervention in the process of domestic violence and the state responsibility.The essence of the problem is to determine the relationship between improper intervention of public power and state responsibility.The horizontal effect of human rights requires the State to assume the obligation of human rights protection,which is mainly established by international human rights conventions.By analyzing the principle of imputation of state responsibility,it is concluded that even if the domestic violence occurs in the private sphere,the improper intervention of the state,such as excessive intervention and the inaction of public power,violates its obligation to protect human rights and should assume state responsibility.In the field of anti-domestic violence,the international community judges whether a country is responsible for not only examining the objective aspect,that is,whether the state adopts appropriate measures to prevent domestic violence,but also the subjective aspect,that is,whether public power is aware of the risk of victims suffering domestic violence.From the perspective of international human rights law,this paper finally analyzes the specific manifestations of the unclear boundary of public power intervention in domestic violence in China:the lack of pre-existing domestic violence judgment standards,the lackof legitimate relief procedures and the lack of ex post compensation mechanisms.By drawing on the successful experience of the Taiwan region,the state should establish statutory intervention standards and formulate specific indicators in advance.The standard relies on the improvement of the public's awareness of the rule of law and can better urge public power to reasonably intervene in domestic violence.Then the public power determines the level of crisis in which the victim is subjected to violence through specific indicators,and sets the optimal rescue procedure according to different levels of crisis situations and the wishes of the victims.In view of the excessive interference of public power on domestic violence,the injured may apply for state compensation according to law,but whether the injured person can apply for state compensation according to the inaction of public power is still not clearly defined.Therefore,the state can learn from the fault liability principle and the moral damage compensation standard of the domestic tort law,and set specific standards for the compensation mechanism of behavioral inaction.