- 期刊
农村妇女土地权益司法保障中的人权表达——以206份民事司法裁判文书为样本
Human Rights Expression in the Judicial Protection of Rural Women's Land Rights and Interests-Based on a Sample of 206 Civil Judgments
摘要
农村妇女土地权益问题在承载传统文化的村民自治与保障男女平等的法治原则冲突之下产生，其保障在实践中常常陷入“制度迷宫”。学界对此问题的讨论通常围绕制度建设、观念转变等路径展开。与此同时，检索相关裁判文书发现，“人权”一词频繁出现。在206篇裁判文书样本中，“人权”在时间和地域分布中皆呈现大分散、小集中的态势；既出现在当事人的主张中，也出现在法官的说理中。对裁判文书样本中“人权”语词的语义表达进行类型化梳理后发现，在涉及农村妇女土地权益的裁判文书中，“人权”语词的使用反映了至少三种人权观念，即生存权是首要的基本人权，所有人在法律面前平等并受法律平等保护，充分保障妇女儿童的权利。法官在裁判理由中使用“人权”，反映了“人权”在司法审判活动中的补强论证作用和解释模糊性规则作用。此外，通过对裁判文书样本中人权表达的观察，能够发现我国人权保障的发展性和超越特殊主义的普遍主义人权保障路径。
並列摘要
Rural women's rights and interests in relation to land give rise to problems under the conflict between villagers' autonomy which carries traditional culture and the principle of the rule of law which guarantees equality between men and women, and the protection of which is often caught in an "institutional maze" in practice. Discussions on this issue in the academic field usually revolve mainly on the institutional establishment and the concept change. Meanwhile, a survey of the relevant judgment documents shows that the expression of "human rights" appears frequently. In a sample of 206 judgment documents, the term "human rights" is widely dispersed in time and geographically distributed, and it appears in the claims of the parties as well as in the reasoning of the judges. A typology of the semantic expressions of "human rights" in the sample of judgment documents shows that the use of "human rights" terminology in judgment documents concerning rural women's land rights reflects at least three concepts of human rights, which are the right to subsistence as the primary human right, the equality of all persons before the law and their equal protection by the law, and the complete protection of the rights of women and children. The presence of "human rights" in the judges' reasons for decisions reflects the role of human rights as a reinforcement of arguments and an explanation of ambiguous rules in judicial activities. In addition, the observation of the expression of "human rights" in the sample of judgment documents reveals the development of human rights protection in China and the path of universalism beyond particularism in human rights protection.