兒童虐待國家干預(yù)制度比較研究
發(fā)布時間：2018-08-09 08:01
【摘要】：兒童虐待是各種損害兒童利益行為的總稱,主要表現(xiàn)為對18周歲以下未成年人的身體虐待、忽視、性侵犯、情感和精神虐待四種形式。虐待行為對兒童身心健康的損害會阻礙兒童的健康發(fā)展,同時損害國家未來的人力資源公共利益,因此國家負(fù)有保護(hù)兒童的責(zé)任和義務(wù)。從人權(quán)保護(hù)的角度,國家負(fù)有尊重、保護(hù)、實現(xiàn)基本人權(quán)的義務(wù)。兒童的生命權(quán)和發(fā)展權(quán)是聯(lián)合國《兒童權(quán)利公約》中的基本權(quán)利,免予受到一切形式暴力侵害的權(quán)利是在其基礎(chǔ)之上的派生權(quán)利。聯(lián)合國《兒童權(quán)利公約》中締約國的首要責(zé)任是對各種侵害兒童的行為進(jìn)行預(yù)防和干預(yù)。從利益保護(hù)的角度,兒童是一國未來勞動力的主要來源,兒童的發(fā)展?fàn)顩r直接決定一個國家未來人力資源水平的高低。國家對兒童虐待行為的干預(yù),既是對兒童個人利益的保護(hù),也是對國家公共利益的保護(hù)。保護(hù)兒童利益是當(dāng)代有關(guān)兒童立法的價值取向。各國法律所保護(hù)的兒童利益范圍,不僅包括兒童的生存、身體完整利益,還包括兒童的心理、認(rèn)知、情感利益。保護(hù)并實現(xiàn)兒童利益是國家干預(yù)兒童虐待的終極目標(biāo),干預(yù)制度的構(gòu)建和實施都圍繞兒童的基本利益需要展開。法律所保護(hù)的兒童利益內(nèi)涵和外延,是決定法律保護(hù)方法的核心因素。如何在國家干預(yù)制度中實現(xiàn)兒童利益最大化是本文研究的主要問題。本文主要采用比較研究方法,通過對不同國家具體干預(yù)措施的主體、程序、條件、關(guān)系等內(nèi)容的深入比較分析,揭示不同國家兒童虐待干預(yù)制度都共同包括的核心構(gòu)成要素,為我國兒童虐待干預(yù)制度的構(gòu)建提供相關(guān)的依據(jù)。界定“兒童虐待”概念是所有法律制度的起點�！皟和按钡姆筛拍�,既包含了對虐待行為的判斷標(biāo)準(zhǔn),為國家干預(yù)程序的啟動提供了依據(jù),也包含了法律所保護(hù)的兒童利益范圍。各國“兒童虐待”的法律規(guī)范普遍保護(hù)的兒童利益,包括兒童的身體發(fā)展、認(rèn)知發(fā)展和社會發(fā)展三方面利益。在兒童利益的保護(hù)方法上,鑒于兒童的脆弱性和依賴性特點,主要是通過父母的照顧義務(wù)和國家的監(jiān)督替代責(zé)任來保障兒童的權(quán)利。由于父母是虐待兒童的主要主體,因此國家干預(yù)措施的對象主要是父母,國家干預(yù)制度的主要內(nèi)容是由對父母虐待兒童行為的干預(yù)措施所構(gòu)成。國家干預(yù)措施圍繞兩方面內(nèi)容展開：一是對兒童的保護(hù),二是對父母的幫助和監(jiān)督。從兒童利益需要的角度而言,兒童生存是其他一切利益存在的基礎(chǔ),保障兒童人身安全是各國國家干預(yù)的最低目標(biāo)。另一方面父母是實現(xiàn)兒童利益的最佳人選,家庭是實現(xiàn)兒童利益的最佳場所,幫助兒童回歸正常家庭是國家干預(yù)的最高目標(biāo)。各國干預(yù)制度都表現(xiàn)出優(yōu)先幫助監(jiān)督父母、最大限度避免父母兒童分離的特點。僅在幫助監(jiān)督措施無效的情形下,才會考慮適用剝奪父母監(jiān)護(hù)權(quán)措施。本文第一章以兒童利益的內(nèi)涵和保護(hù)方法為切入點,通過總結(jié)國家介入親子關(guān)系的歷史軌跡,揭示國家限制父母行為的具體路徑。親子關(guān)系立法的歷史演進(jìn)軌跡反映了國家介入親子關(guān)系的必要性原則和比例性原則。促使國家加大保護(hù)兒童力度的原因,在于兒童社會價值的變遷。保護(hù)兒童免予受到一切形式的傷害,是國家的基本責(zé)任之一。聯(lián)合國《兒童權(quán)利公約》規(guī)定了締約國保護(hù)兒童免予受到各種傷害的具體要求。第二章以兒童虐待的概念和干預(yù)的啟動程序為研究對象,通過分析兒童虐待的法律概念,指出決定各國干預(yù)標(biāo)準(zhǔn)的核心要素是兒童利益的損害及程度。各國普遍采用“危害”標(biāo)準(zhǔn)作為判斷兒童利益損害的依據(jù),既包括了兒童受到的實質(zhì)性損害,也包含了使兒童處于高度危險狀態(tài)的傷害風(fēng)險。一旦兒童損害的程度符合國家干預(yù)標(biāo)準(zhǔn),后續(xù)的報告、調(diào)查和評估程序都將啟動。第三章以各國具體的干預(yù)措施為研究對象,對干預(yù)措施的對象、功能、適用條件、具體方式進(jìn)行比較研究。根據(jù)對象的不同,干預(yù)措施可以分為針對父母的干預(yù)措施和針對兒童的保護(hù)措施。國家對父母的干預(yù)措施,既包括對父母的幫助和支持,又包括對父母行為的監(jiān)督,干預(yù)目標(biāo)是盡量協(xié)助、督促父母為兒童提供適格照顧,幫助兒童回歸家庭。而對兒童的保護(hù)措施,則根據(jù)兒童面臨的危險程度分為緊急保護(hù)措施、家庭外安置措施、國家替代監(jiān)護(hù)措施。兩種類型的措施往往同時進(jìn)行,以最大限度的幫助兒童回歸家庭。第四章以國家干預(yù)措施的實施主體為研究對象,區(qū)分兒童保護(hù)機(jī)構(gòu)和法院的不同角色和職能,指出兒童保護(hù)機(jī)構(gòu)和法院在兒童虐待干預(yù)制度中存在的必要性。第五章針對我國兒童虐待國家干預(yù)現(xiàn)狀的缺陷與不足,建議設(shè)立專職的兒童保護(hù)政府機(jī)構(gòu),加強(qiáng)對兒童的保護(hù)和對父母的幫助和監(jiān)督,并在《民法典》的立法中完善未成年人監(jiān)護(hù)制度,在《反家庭暴力法》的立法中完善針對兒童遭遇家庭暴力的干預(yù)制度,在條件成熟時制訂專門的《兒童虐待防治法》。
[Abstract]:Child abuse is the general name for all kinds of children's interests, which are mainly manifested in four forms of physical abuse, neglect, sexual assault and emotional and mental abuse to minors under 18 years of age. The damage to the physical and mental health of children will impede the healthy development of children and damage the public interests of the country's future human resources. The state bears the responsibility and obligation to protect children. From the perspective of human rights protection, the state bears the obligation to respect, protect and realize basic human rights. The right to life and development of children is the basic right in the United Nations Convention on the rights of the child, and the right to exempt from all forms of violence is a derivative right on the basis of which the United Nations < children's rights. The primary responsibility of the State Party in the Convention on the rights of the child is to prevent and intervene in the behavior of all kinds of children. From the perspective of protection of interests, children are the main source of a country's future labor force. The development of children directly determines the level of the future human resources in a country. The intervention of the state to child abuse is both the right and the child. The protection of the personal interests of children is also the protection of the public interests of the state. The protection of children's interests is the value orientation of children's legislation. The interests of children protected by the laws of all countries include not only the survival of children, the physical integrity, but also the psychological, cognitive and emotional interests of children. The protection and Realization of children's interests is the state's dry interests. The ultimate goal of child abuse, the construction and implementation of the intervention system are all around the basic interests of children. The connotation and extension of the interests of children protected by law are the core factors that determine the method of legal protection. How to maximize the benefit of children in the state intervention system is the main problem in this paper. The comparative study method, through the in-depth comparison and analysis of the main body, procedure, conditions and relations of the specific intervention measures in different countries, reveals the core elements of the intervention system of child abuse in different countries, and provides the relevant basis for the construction of the intervention system of child abuse in China. The starting point of the legal system. The legal concept of "child abuse" contains both the criteria for the judgment of abuses, the basis for the initiation of state intervention and the interests of children protected by the law. The legal norms of "child abuse" in various countries are generally protected by the interests of the children, including the development of the children's body and cognition. Three aspects of development and social development. In the protection of children's interests, in view of the vulnerability and dependence of children, the rights of children are guaranteed mainly through parental care obligations and the supervision of the state. Because parents are the main body of child abuse, the main object of the state intervention is the parents, The main content of the state intervention system is made up of intervention measures for child abuse by parents. The national intervention measures are carried out around two aspects: one is the protection of children, the two is the help and supervision of parents. From the perspective of the needs of children, the survival of children is the basis for all other interests and guarantees the children. Personal safety is the lowest goal of state intervention. On the other hand, parents are the best people to realize the interests of children. Family is the best place to realize the interests of children. To help children return to normal families is the highest goal of state intervention. The intervention system of each country shows priority to help the supervisor parents and avoid the separation of parents and children to the maximum. The first chapter, in the first chapter, takes the connotation and protection methods of the interests of children as the breakthrough point, and through the summary of the historical track of the state involvement in parent-child relations, reveals the specific path of the state to restrict the behavior of parents, and the historical evolution of the legislation of parent-child relations. The trace reflects the principle of necessity and proportionality of the state's involvement in parent-child relations. The reasons for the efforts of the state to increase the protection of children are the changes in the social value of children. It is one of the basic responsibilities of the state to protect children from all forms of injury. The United Nations Convention on the rights and interests of children stipulates that the protection of children from the State Party is exempt from the consent of the State Party. The second chapter takes the concept of child abuse and the starting procedure of intervention as the research object. Through the analysis of the legal concepts of child abuse, it points out that the core elements of the intervention standards of all countries are the damage and degree of the interests of children. It includes both the substantial damage to the children and the risk of injury in the highly dangerous state of the child. Once the degree of child damage is in accordance with the national standard of intervention, the follow-up report, the investigation and evaluation procedure will be started. The third chapter takes the specific intervention measures of each country as the object of study, the object, function, and application of the intervention measures. According to the different objects, the intervention measures can be divided into parents' intervention measures and protection measures for children. The intervention measures of the parents include the help and support of parents, and the supervision of parents' behavior, and the goal of intervention is to help the parents to provide the children as much as possible. Appropriate care to help children return to their families. Protection measures for children are divided into emergency protection measures, family placement measures, and national alternative guardianship measures based on the risk of children. The two types of measures are often carried out at the same time to help the children to return to their families to the maximum extent. The fourth chapter is the implementation of the state intervention. The body is the research object, distinguishes the different roles and functions of child protection institutions and courts, points out the necessity of child protection institutions and courts in the system of child abuse intervention. The fifth chapter proposes the establishment of a full-time child protection government agency to strengthen the protection of children. With the help and supervision of the parents, and in the legislation of the civil code, the minors' guardianship system is perfected. In the legislation of the anti domestic violence law, the intervention system for children's domestic violence is perfected, and a special "child abuse prevention and control law" is formulated when conditions are ripe.
【學(xué)位授予單位】：武漢大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2015
【分類號】：D998.2;D922.183
，
本文編號：2173438
[Abstract]:Child abuse is the general name for all kinds of children's interests, which are mainly manifested in four forms of physical abuse, neglect, sexual assault and emotional and mental abuse to minors under 18 years of age. The damage to the physical and mental health of children will impede the healthy development of children and damage the public interests of the country's future human resources. The state bears the responsibility and obligation to protect children. From the perspective of human rights protection, the state bears the obligation to respect, protect and realize basic human rights. The right to life and development of children is the basic right in the United Nations Convention on the rights of the child, and the right to exempt from all forms of violence is a derivative right on the basis of which the United Nations < children's rights. The primary responsibility of the State Party in the Convention on the rights of the child is to prevent and intervene in the behavior of all kinds of children. From the perspective of protection of interests, children are the main source of a country's future labor force. The development of children directly determines the level of the future human resources in a country. The intervention of the state to child abuse is both the right and the child. The protection of the personal interests of children is also the protection of the public interests of the state. The protection of children's interests is the value orientation of children's legislation. The interests of children protected by the laws of all countries include not only the survival of children, the physical integrity, but also the psychological, cognitive and emotional interests of children. The protection and Realization of children's interests is the state's dry interests. The ultimate goal of child abuse, the construction and implementation of the intervention system are all around the basic interests of children. The connotation and extension of the interests of children protected by law are the core factors that determine the method of legal protection. How to maximize the benefit of children in the state intervention system is the main problem in this paper. The comparative study method, through the in-depth comparison and analysis of the main body, procedure, conditions and relations of the specific intervention measures in different countries, reveals the core elements of the intervention system of child abuse in different countries, and provides the relevant basis for the construction of the intervention system of child abuse in China. The starting point of the legal system. The legal concept of "child abuse" contains both the criteria for the judgment of abuses, the basis for the initiation of state intervention and the interests of children protected by the law. The legal norms of "child abuse" in various countries are generally protected by the interests of the children, including the development of the children's body and cognition. Three aspects of development and social development. In the protection of children's interests, in view of the vulnerability and dependence of children, the rights of children are guaranteed mainly through parental care obligations and the supervision of the state. Because parents are the main body of child abuse, the main object of the state intervention is the parents, The main content of the state intervention system is made up of intervention measures for child abuse by parents. The national intervention measures are carried out around two aspects: one is the protection of children, the two is the help and supervision of parents. From the perspective of the needs of children, the survival of children is the basis for all other interests and guarantees the children. Personal safety is the lowest goal of state intervention. On the other hand, parents are the best people to realize the interests of children. Family is the best place to realize the interests of children. To help children return to normal families is the highest goal of state intervention. The intervention system of each country shows priority to help the supervisor parents and avoid the separation of parents and children to the maximum. The first chapter, in the first chapter, takes the connotation and protection methods of the interests of children as the breakthrough point, and through the summary of the historical track of the state involvement in parent-child relations, reveals the specific path of the state to restrict the behavior of parents, and the historical evolution of the legislation of parent-child relations. The trace reflects the principle of necessity and proportionality of the state's involvement in parent-child relations. The reasons for the efforts of the state to increase the protection of children are the changes in the social value of children. It is one of the basic responsibilities of the state to protect children from all forms of injury. The United Nations Convention on the rights and interests of children stipulates that the protection of children from the State Party is exempt from the consent of the State Party. The second chapter takes the concept of child abuse and the starting procedure of intervention as the research object. Through the analysis of the legal concepts of child abuse, it points out that the core elements of the intervention standards of all countries are the damage and degree of the interests of children. It includes both the substantial damage to the children and the risk of injury in the highly dangerous state of the child. Once the degree of child damage is in accordance with the national standard of intervention, the follow-up report, the investigation and evaluation procedure will be started. The third chapter takes the specific intervention measures of each country as the object of study, the object, function, and application of the intervention measures. According to the different objects, the intervention measures can be divided into parents' intervention measures and protection measures for children. The intervention measures of the parents include the help and support of parents, and the supervision of parents' behavior, and the goal of intervention is to help the parents to provide the children as much as possible. Appropriate care to help children return to their families. Protection measures for children are divided into emergency protection measures, family placement measures, and national alternative guardianship measures based on the risk of children. The two types of measures are often carried out at the same time to help the children to return to their families to the maximum extent. The fourth chapter is the implementation of the state intervention. The body is the research object, distinguishes the different roles and functions of child protection institutions and courts, points out the necessity of child protection institutions and courts in the system of child abuse intervention. The fifth chapter proposes the establishment of a full-time child protection government agency to strengthen the protection of children. With the help and supervision of the parents, and in the legislation of the civil code, the minors' guardianship system is perfected. In the legislation of the anti domestic violence law, the intervention system for children's domestic violence is perfected, and a special "child abuse prevention and control law" is formulated when conditions are ripe.
【學(xué)位授予單位】：武漢大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2015
【分類號】：D998.2;D922.183
，
本文編號：2173438
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