論性別平等之立法定制

The Legal System of Gender Equality

蔡輝龍(Hui-Lung Tsai)

《致理法學》 11期 (2012/03) Pp. 53-101

摘要

性別平等源自兩性平等，兩性平等之前，其為兩性不平等。人類社會從母系社會步入父系社會，衍生男尊女卑之制度，禁錮女子之受教權、剝削其參政權，使其一生無知、困守家庭，任由男人制壓而甘之若飴，足不出戶，受男人眷養，一生榮辱悉準於男人，「女不言外」，立法定制男尊女卑，理所當然。其後社會解放，生產形態改變，開放女子受教權之結果，女子就學、就業、從政，足以與男子分庭抗禮，形成兩性平等之思潮。但女子長居於社會之劣勢，男女平等不可一蹴可幾，故平等之內涵殊非男女之形式平等（相同之人頭，享有相同之資源）。此種平等其為「反差別原則」，相同事物作相等之對待，屬司法審查之標準，無助於婦女之脫離劣勢群族，故必期以較高之政治力介入，使婦女獲致較多資源，以助其脫離劣勢之地位，俾免弱者恆弱，所追求者，應為「反階級原則」之平等，屬國會審查之標準，注重「差別是否合理」而採差別待遇之立法，予婦女較多之保障。在「反階級原則」下之立法定制用以「維護婦女之人格尊嚴，保障婦女之人身安全，消除性別歧視，促進兩性地位之實質平等」（憲增修10條六項），先後公布施行者有「性別平等教育法」、「性別工作平等法」等，旨在建立和諧之社會，謀求友善之職場關係，是知今日社會性別平等是共識。

關鍵字

性別 ； 形式平等 ； 實質平等 ； 反階級原則 ； 反差別原則 ； 男尊女卑 ； 立法定制

並列摘要

Gender Equality was derived from the inequality system of gender in history. In traditional domestical relations, family was leaded by female and then, gradually, changed to male. Under this system, male was deemed superior than female. The right of receiving education and the right of involving in political affairs of female were strongly restricted. The female's lives were restricted to doing family works only. The family was economically supported by male. The legal system of that time was also settled under this doctraine. Then, due to revolutionary change of society, the gender equality was in existance. But only in form. The purpose was to change the discrimination in treating male and female. This system was established based on the principle of treating the same matter on the same way. However, in substance, it did not help the female at all. Therefore, high degree of political involvement must exist to help the female in struggling for more resource. The center purpose was anti-class. Under this system, the standard was set for reviewing the reasonableness of the differences between genders. Therefore, female get more protections under the said system. Based on the principle of anti-class, the law was passed to protect the dignity and the personal security of female to eliminate gender diserimination against female and to promote equality of both genders (subsection six of tenth amendment of our Consitution). For example, ＂the Gender Equality in Education Act＂ and ＂Gender Equality in Employment Act＂ were passed to promote the establishment of a harmony society, and to promote the working environment. This principle becomes the common understanding in gender equality area.

並列關鍵字

Gender Difference ； Equality in Form ； Equality in Substance ； Principle of Anti-class ； Principle of Anti-discrimation ； Male superior and Female Inferior ； Law and System Establishment