| In the pre civil code era,there are three major problems in the system design and judicial judgment of anti sexual harassment in the legislative and judicial circles;First,there is no clear definition of the legal concept of sexual harassment,and the way of infringement and legal liability are also vague;Second,it fails to distinguish the essential boundary between gender discrimination or sexual harassment(equal right)and sexual harassment(personality right);Third,it is only limited to the one-way and biased protection of women,ignoring the same-sex sexual harassment and women’s sexual harassment against men.The above three defects seriously affect the legislative value orientation and basic system design,and article 1010 of the civil code effectively overcomes the above defects.The article is under the category of personality rights,which declares that the sexual harassment legislation in China adopts the mode of private rights protection.The article clarifies the tort mode of sexual harassment in the form of non exhaustive enumeration,and extends the scope of protection to all civil subjects,reflecting the spirit of integration and homogenization of legislation.In the process of implementing the civil code,how to accurately interpret the legislative purpose and institutional functions of article 1010,especially how to establish the boundary of sexual harassment,how to divide the boundary between sexual harassment and sexual assault,how to prevent sexual speculation and sexual coercion by sexual harassment,will be an arduous and long-term task.Through legislative interpretation and case analysis,this paper focuses on the four major issues involved in the anti sexual harassment provisions of the Civil Code: the basis of rights,the subject of rights,torts and the subject of responsibility.From the three aspects of legal value,the nature of rights and the boundary of behavior,this paper makes an all-round and in-depth analysis of the legislative purpose and system function of article 1010 of the civil code,Then,from the perspective of legislative interpretation,it defines the subject of rights,clarifies the attribute of rights,and determines the tort.It advocates that in the process of judicial application,we should pay full attention to and consider the core issues such as the behavior composition,identification standards,exclusion rules,and relief measures of sexual harassment. |
