| The protection of women’s rights and interests in China is an old topic,and since the founding of the country,China’s legislation on the protection of women’s rights and interests has been moving forward.However,to date,there is still a large gap between the actual rights and interests enjoyed by Chinese women and men.This article starts from clarifying the basic connotation of legal paternalism and evaluates the protection of women’s rights and interests in China in the light of the existing laws and regulations,with a view to improving the effectiveness of legal paternalism in protecting women’s rights and interests in China,and thus promoting the comprehensive protection of women’s rights and interests and the steady improvement of their social status.In addition to the introduction and conclusion,the paper is divided into four parts,with more than 40,000 words.The first part,the definition and branches of legal paternalism.In order to explore the protection of women’s rights in China in the context of legal paternalism,we must first clarify the basic meaning of legal paternalism.First of all,legal paternalism is the concept that the government protects citizens from self-harm or promotes their interests as a protector,which is usually expressed as a prohibitive or imperative legal norm that restricts the freedom of behavior of the protected or their counterparts,and its constitutive elements can be divided into four aspects: purpose element,means element,will element and objective effect.Secondly,legal paternalism can be distinguished from other protection concepts in terms of the weak and foolish nature of the actor,the direct purpose of protecting or promoting the actor’s interests,and the means manifested as coercive intervention.Again,the basis of legal paternalism includes the premise of legal paternalism,the justification of the purpose and the necessity of the means of intervention.Finally,legal paternalism can be distinguished into moderate paternalism and hard paternalism according to the difference of volitional factors,and direct paternalism and indirect paternalism according to the difference of intervention objects,and this part also identifies the specific branches of legal paternalism and its similar theories.In the second part,the performance and evaluation of legal paternalism in Chinese women’s rights protection legislation.From the perspective of China’s current legislation on the protection of women’s rights and interests,the legal paternalism concept is mainly reflected in the three legislative provisions on freedom of occupation,maternity leave,childbirth leave and parental leave,and retirement age difference.After judging the compliance of these legislative provisions with legal paternalism,and analyzing them from four perspectives: the premise of application,the justification of purpose,the necessity of intervention means and the objective effect,the following conclusions can be drawn: the provisions of occupational freedom restriction are direct and strong paternalistic intervention means,which are unnecessary for non-"third period" female workers and become It is unnecessary and a shackle in the process of career development for non-"third-period" female workers,while it is necessary and effective in protecting "third-period" female workers;maternity leave,childbirth leave and parental leave are indirect and mild paternalistic interventions,which play the expected role in protecting women’s maternity rights and interests,but are too idealistic and not relevant to women’s labor rights and interests.The difference in retirement age is a direct and strong paternalistic intervention,which gives women workers certain labor benefits,but also greatly hinders women from realizing their social work value.The third part is an evaluation of the role of legal paternalism in protecting women’s rights and interests in China.In terms of the positive effects of legal paternalism on the protection of Chinese women’s rights and interests,these protection measures have guaranteed Chinese women’s enjoyment of basic rights and interests,promoted Chinese women’s self-awakening,and laid the foundation for the perfect protection of Chinese women’s due rights and interests.In terms of the shortcomings of legal paternalism in the protection of women’s rights and interests in China,these protection measures were influenced by male centrism at the beginning of their formulation,which deepened stereotypes of women,limited women’s development possibilities,ignored the fact that men are also the counterparts of women’s rights and interests,and aggravated the inequality between men and women.The fourth part is the improvement of legal paternalism in the protection of women’s rights and interests in China.On the one hand,the premise of protection should be based on the real needs of women;on the other hand,the means of protection should focus on providing protection while respecting women’s autonomy.In terms of the reconstruction of the specific system: first,the provisions of occupational freedom restrictions should be adjusted according to the different objects of protection;second,maternity leave,childbirth leave and parental leave should be granted to men and women with the same length of leave;third,the provisions of retirement age difference should be abolished. |
