The Right to be Free from Domestic Violence in Macau

Domestic violence is a problem which historically has not received adequate attention in Macau. At the outset, it explains why the right to be free from domestic violence matters in Macau. I contend that the treatment of domestic violence is a human rights issue under international human rights law, focusing on the shift in the conceptualization of domestic violence from a private matter into a human rights issue. I denounce domestic violence as human rights violation. The second part depicts the draft law on Combating of Domestic Violence Act and analyzes the possible effects of Combating of Domestic Violence Act that can occur. Then, I intend to highlight the absence of attention to the positive duties of states—not negative duties to restrain from acting (such as a duty not to infringe upon the right to be free from domestic violence), but positive, affirmative duties to protect women.     

Religion, State Power, and Domestic Violence in Muslim Societies: A Framework for Comparative Analysis

This article focuses on the issue of domestic violence in Muslim societies in the Middle East, Africa, and Asia. The analytical framework is comparative, emphasizing four factors and the interplay among them: shari'a (Islamic law), state power, intrafamily violence, and struggles over women's rights. The comparative approach historicizes the problem of domestic violence and impunity to consider the impact of transnational legal discourses (Islamism and human rights) on "local" struggles over rights and law. The use of shari'a creates some commonalities in gender and family relations in Muslim societies, notably the sanctioning and maintenance of male authority over female relatives. However, the most important issue for understanding domestic violence and impunity is the relationship between religion and state power. This relationship takes three forms: communalization, in which religious law is separate from the national legal regime; nationalization, in which the state incorporates religious law into the national legal regime; and theocratization, in which the national legal regime is based on religious law.     

论国际法上的人权保护

尊重和保护人权是各国应负的国际义务 ,各国均应采取必要的措施来保护人权。作者指出 ,保护人权与维护主权二者并不相悖 ,各国只有在平等、相互尊重主权的基础上 ,才能促进人权保护的发展。     

The Logics of Supranational Human Rights Litigation,Official Acknowledgment,and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996–2006

This article examines the domestic impact of supranational human rights litigation on acknowledgment of state violence in the context of macroprocesses of global governance. The article's argument is that the impact of supranational human rights litigation on the process of acknowledgment must be seen through counternarratives on state violence. The article undertakes a detailed textual analysis of the truth claims and denial strategies that emerged from the European Court of Human Rights proceedings on state violence during Turkey's struggle against the armed group the Kurdistan Workers Party (PKK). It assesses these in the context of the human rights reforms that were created following pressure from European-level governance processes. The article argues that attention must be paid to agency in acknowledgment and truth-telling processes, and points to the limits of technical-bureaucratic forms of human rights reform interventions in the context of state violence.     

可操作性家庭暴力概念入法之理由分析

家庭暴力在古代社会体现的是男性家长的特权和权威,通过家礼由家长在家庭内部自行解决。由于当代社会男女两性平等和人权理念的影响颇深,人们已经意识到家庭暴力并非家庭内部纠纷,而是侵犯人权的社会问题,仅靠道德是无法解决的。同时,家庭暴力是世界范围内普遍存在的问题,因此,从国际公约禁止针对妇女的暴力开始,到目前为止已有40余个国家颁布了反家庭暴力法。我国2001年修订的《婚姻法》虽然明确规定"禁止家庭暴力,"可并未给予定义;随后《最高人民法院关于适用〈婚姻法〉若干问题解释(一)》虽对"家庭暴力"给予定义,但与国际公约等法律文件相比其先天存在许多不足。这不仅削弱了反家庭暴力的力度,而且也不利于保护受害者的权利。可操作性概念入法尤为必要。     

Indigenous self-determination in an age of genetic patenting: recognizing an emerging human rights norm

This Note explores how the law can help indigenous people obtain meaningful control of their genetic material. Part I will briefly discuss the background of genetics, life patents, and indigenous groups. Part II sets out the domestic common law and international human rights law and demonstrates that neither currently provide adequate protection for indigenous peoples. Part III considers the human right of self-determination in the context of indigenous research and patenting, and illustrates that an emerging international norm recognizes an indigenous people's right to control their genetic material. Part IV argues that Congress should pass legislation to adequately meet the human rights needs of indigenous peoples generated by the rapid advancement of biotechnology. This Note concludes that congressional action to protect indigenous peoples is consistent with domestic and international law, and is a natural advancement of human rights and responsible state action.     

REFUSING TO BLAME THE VICTIM FOR THE AFTERMATH OF DOMESTIC VIOLENCE

This note addresses the decision of Nicholson v. Williams and the significant impact it will have on the rights of domestic violence victims. Victims are faced with unique challenges with regards to protecting their children from witnessing domestic violence. The Nicholson decision recognizes that the dynamics of domestic violence require special consideration in "failure to protect" cases and that removal from the home is not necessarily the best alternative for the well-being of the children. This note attempts to explain that the abuser, not the victim, is responsible for the effects that domestic violence has on the children who witness it and that it is important to keep the victim and children united to cope with the effects of domestic violence.     

中国特色社会主义人权理论体系论纲

随着改革开放的深入,中国的人权事业取得了巨大的进展,人权的理论研究逐渐成熟,梳理、提炼中国特色社会主义人权理论体系已为可能。中国特色社会主义人权理论体系的基础性要素,包括人权的概念、属性、类别、实现机制和社会条件等。中国特色社会主义人权理论,既承认人权是人类的共同理想和价值准则,是人之为人不可剥夺的权利,尊重和保障人权是每个主权国家的义务,需要通过国内的立法、行政和司法机制予以落实,需要加强人权国际合作以促进其实现,也承认人权发展的阶段性和历史文化传统对人权实现方式的影响,反对人权国际合作中的霸权主义倾向。     

当代中国社会保障权之可诉性透视——基于《人民法院案例选》（1992-2010）的文本分析

国家义务是实现社会保障权的法定义务。探讨社会保障权的可诉性,对全面把握和评判社会保障权之国家义务履行状况,具有决定性意义。以《人民法院案例选》（1992-2010）为参照系,当前中国对社会保障权的维护主要体现在社会保险权之工伤保险领域,在内容上主要表现为国家的尊重和保护义务。在明显具有给付性质或特征的社会保险权之养老保险、社会救助权、社会福利权等领域,国家对其法定义务的履行还任重而道远。在工伤认定案件中,法院对劳动者权利诉求的支持;以及在社会优抚权案件中,法院对《行政诉讼法》的扩张性解释,这些人性化举措都将如星星之火,可以燎原。     

Domestic violence during pregnancy in an eastern city of Turkey: a field study

Violence is an increasing and important community health problem that can be seen in any area of human life. Limited studies were found about domestic violence among pregnant women and its relation with social status of women. The aim of this study was to determine the prevalence and types of domestic violence during pregnancy, factors affecting it, women's thoughts about violence, and relation between social status of women and domestic violence. This cross-sectional study was conducted on 253 pregnant women, using cluster and simple random sampling methods. Chi-square test and logistic regression analysis methods were used to analyze the data. Women who indicated that they have been exposed to violence at some point of their lives were 24.1% and who indicated that violence continued while they were pregnant were 11.1%. Physical violence was the most common type of violence reported (18.2%). It was found that women who had primary school or lower level of education and who made unwanted marriage suffered from more violence during pregnancy. It can be said that violence against pregnant women is still a social problem. In societies where gender roles are dominant, decision makers have to take necessary steps such as supporting education of girls to improve social status of women, increasing awareness among women in regard to personal rights and legal regulations which will contribute to the solution of the issue.     

论人权保障语境下的捕前羁押制度改革

目前,人权保障已经成为时代主题.国家要尊重和保障人权,政府要保证公民幸福而有尊严地生活.犯罪嫌疑人在无罪推定的语境之下,应该享有正常的人权保障,在未经公正审判确定其罪的情况下,以羁押的方式剥夺其作为基本人权的人身自由,需要严格的审查方式,因为羁押在折抵刑期的意义上与徒刑所带来的惩罚是相当的.     

论发展权的实现途径

发展权既是一项国际人权,同时也是一项国内人权.作为国际人权,为保障发展权的实现,各国应努力创造一个有利于发展权实现的国际环境.作为国内人权,国家应采取积极的措施来保障和促进发展权的实现.包括设立促进与保护人权的国家专门机构;完善立法;完善宪法审查和宪法诉讼制度.     

“保护的责任”与宽容、多元的价值秩序

"保护的责任"是一种新的人权保护观念和规范,它要求主权国家必须承担和履行保护其国内人民的重大责任,当一国不能或不愿履行这一责任时,国际社会将有责任介入并采取相应的保护行动。由于"保护的责任"在内涵发展与具体适用等方面存在着不确定性与分歧,为使"保护的责任"得到正确的解释运用,防止其被滥用,应当坚持国际社会的容忍性、多样性,以宽容、多元的人权价值及其相应的国际秩序为基础来指导国内人权保护。     

The (Heterosexual) Regendering of a Modern State: Criminalizing and Implementing Domestic Violence Law in Trinidad

This paper investigates one example of a process with global implications that I describe as the "regendering" of the state. Regendering refers to the process of bringing to public and legal attention categories and activities that were formerly without name but that constituted harm to women, denied them rights, silenced them, or limited their capacity to engage in actions available to men. I examine the regendering of the Trinidadian state by focusing on one of its most salient examples, the Domestic Violence Act. I identify first the coalition of forces and events that brought the subject of violence against women to lawmakers' attention and made possible the first Domestic Violence Act in the English-speaking Caribbean. I then investigate the interplay between the global discourse about domestic violence law-the passage of which has become an important symbol of the "modern" state-and local concerns about justice, gender, and family. Finally, I consider problems in the implementation of domestic violence law.     

劳动权的防御权功能与国家的尊重义务

防御权功能是劳动权的首要功能,以防止国家权力的干预、为公民创设"自由空间"为旨趣。公民劳动权的起始之处,即国家权力的终止之所。防御权功能属于"主观权利"范畴,公民享有"不作为请求权"、"停止侵害请求权"。尽管我国《宪法》未规定劳动自由,然而,从"事实"与"规范"二维度看,防御权功能亦是我国劳动权的题中之义。劳动权的防御权功能之实现仰赖国家履行"消极不作为"的"尊重义务"。尊重义务是劳动权保障的根本义务,立法机关和司法机关是尊重义务的主体,行政机关在一定程度上具有尊重义务的主体资格。     

Gendering Justice in Humanitarian Spaces: Opportunity and (Dis)empowerment Through Gender‐Based Legal Development Outreach in the Eastern Democratic Republic of Congo

Why have women in eastern DR Congo increasingly turned to domestic courts in the aftermath of sexual violence, despite the fact that the state has consistently failed to provide basic goods and services to its citizens? Moreover, how do victims of violence interpret their first encounters with state law in an environment characterized by institutional fragility and humanitarian governance? This article analyzes the experiences and reflections of 50 self‐reported victims of sexual violence in eastern DR Congo. We find that human rights NGOs have served as critical mediators in persuading victims of violence to pursue legal remedy for sexual crimes. However, rather than being socialized to prioritize formal accountability mechanisms in precisely the ways that the architects of legal outreach programs intended, we find that victims of violence have turned to the law for a combination of material and ideational factors. Some appear to have internalized emerging norms of punitive criminal justice, while others have adopted the language of law instrumentally, in order to access crucial socio‐material benefits. We identify a paradox of opportunity and disempowerment, therefore, that characterizes our interviewees' experiences with the law.     

水资源管制立法内涵解读

Water resources have the functions as domestic water, resource water and environmental water, on the basis of which the legislative framework of water resource regulations shall be studied. Firstly, domestic water shall be deemed as property right and the legislation shall protect the realization of the fundamental human rights for use of domestic water. Secondly, with respect to resource water, an independent water resource regulatory agency shall be established; and meanwhile, the legislation shall promote the construction of water right market based on property rights and improve the utility of water resources. Thirdly, since environmental water is one of the public goods, the legislation shall create a path of privatization in implementing mechanism for realizing the use of environmental water and the franchising system provides a practical solution to privatization of environmental water. Xu Jinhai, Ph.D in Law, is a vice director of the Public Utilities Law Institute of Hohai University. Since 2001, he has released nearly twenty articles in Nanjing University Law Review and Jiangsu Social Science Journal and other academic journals.     

159例家庭暴力损伤的法医学鉴定分析

目的　探讨家庭暴力损伤的特点及其有关的法医学鉴定问题。方法　对 1 998年 4月～ 1 999年 1 2月间来诊的 1 59例家庭暴力损伤鉴定案件进行回顾研究。结果　家庭暴力的受害者绝大多数为妇女(占 93 1 % ) ,主要发生在配偶间 ( 85 5% ) ,其次为虐老 ( 7 5% )和虐儿 ( 5% )。家庭暴力一般发生在家中 ,以晚上为发生高峰。致伤方式以拳脚为主 ,其次为随手可得的钝器或锐器。损伤多为软组织损伤 ;有4 0 %的受害人投诉前未去医院就诊 ;损伤程度多为轻微伤 ,达轻伤标准占 1 0 %。结论　家庭暴力损伤具有隐藏性和复杂性 ,准确及时地进行法医学鉴定可为受害人主张权利提供有力的证据和帮助 ,对揭露家庭犯罪有着重要意义     

警察介入家庭暴力法律制度之完善

家庭暴力法律规制，不仅涉及公权和私权的平衡、法律规制的方式方法，而且还关涉介入主体的安排和权限等。我国反家庭暴力在法制上存在明显的缺失与不足。通过对当前法律体系的反思，提出了一系列完善我国警察介入家庭暴力的法律制度构想。     

Human Rights,Linguistics and the Law: The UK and Beyond

This article examines mediarepresentation of cases decided in respect ofthe United Kingdom Human Rights Acts (1998).These representations suggest that only somepeople are deserving of human rights. Further,a distinction between legal human rights andhuman rights is made because of this problem ofaccess. Indeed, before one can be clear abouthow to protect human rights in a legal context,one has to be clear about what human rights areuniversally and uncontroversially.