The Basis And Reflection Of Gender Norms In Criminal Law Of China

For a long time,people’s pursuit of gender equality has never stopped,at present,the legal systems in all countries all take equality as one of their important values,and the objective fact of respecting gender differences has been recognized as the correct attitude that is needed to realize gender substantive equality.As the most important law department,criminal law takes punishment of crime and protection of human rights as its basic functions,respects and protects the differences between genders.Only by protecting the differences between genders can we promote the achievement of gender substantive equality.There are also some norms related to gender in the current criminal law of our country,which mainly reflect in the special protection of pregnant women,as well as in the crime field of sexual assault crimes and personal trading crimes.The existence of norms related to gender is exactly the specific presentation of the differential protection of different genders in the criminal law of our country,which is also based on the objective physiological differences between genders.As the two uppermost physiological genders in the society,the differences in the physiological structure between men and women cannot be ignored.It is necessary for criminal law to protect the relatively weak side because of the differences in the physiological structure,however,the rise and development of feminism also further appeal the concept of gender substantive equality,together with the influence of humanitarian thought and the edification of traditional culture,criminal law sets up norms related to gender to protect the differences between men and women.Of course,the setting of norms related to gender in criminal law also takes into account the certain practical factors.The trend of actual cases,the traditional mode of the sexual assault crime in practice and the specific trend of the object of personal trading crime all require that the criminal law should place "women" in a special position and protect them from men.No matter in theory or in practice,norms related to gender have their foundation,but with the development of the times,the existence of such norms shows some deficiencies gradually.From the perspective of theory,on the one hand,norms related to gender in the general provisions of the criminal law have limitations on the subject and leniency in the protection of special groups of women;on the other hand,the specific provisions of the criminal law have set up gender labels in the field of sexual assault crimes and personal trading crimes.It overemphasizes the "weakness" of women to some extent,which will not only result in the neglect of the rights that other genders should enjoy,but also it is a kind of reverse discrimination against women.From the perspective of legislative,the basic purpose of setting norms related too gender in criminal law is to achieve gender equality,but in fact,the norms have brought about unequal results to some extent,the original legislative purpose is difficult to realize.In today’s era,the difference between the strong and the weak is no longer the inherent label between men and women.Therefore,women are always regarded as the protected object is also the presentation of the outdated legislative concept.In addition,the setting of gender labels in specific crimes is also not coincident with the provisions of other law departments and the spirit of relevant international laws,which will not only lead to the uncoordination of the legal system at home,but also is not conducive to international connection.From the perspective of judicial practice,cases in which men and bisexuals become victims of crimes of sexual assault crimes and personal trading crimes occur from time to time.Facing these special cases,the existence of gender labels in some crimes will make judicial authority face the dilemma of no law to rely on or no law to punish their crimes,which is obviously not beneficial to the realization of criminal law’s functions of punishing crimes and protecting human rights.It can be seen that under the current social background,the existence of norms related to gender in the current criminal law has become increasingly unable to fit the development of the times,therefore,it is necessary to reflect on such norms in combination with judicial practice and to improve them in terms of the existing problems.