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致理法學

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篇名 論性別平等之立法定制
卷期 11
並列篇名 The Legal System of Gender Equality
作者 蔡輝龍
頁次 53-101
關鍵字 性別形式平等實質平等反階級原則反差別Gender DifferenceEquality in FormEquality in SubstancePrinciple of Anti–classPrinciple of Anti-discrimationMale superior and Female InferiorLaw and System Establishment
出刊日期 201203

中文摘要

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。

英文摘要

Gender Equality was derived from the inequality system of gender inhistory. In traditional domestical relations, family was leaded by female andthen, gradually, changed to male. Under this system, male was deemedsuperior than female. The right of receiving education and the right ofinvolving in political affairs of female were strongly restricted. The female’slives were restricted to doing family works only. The family waseconomically supported by male. The legal system of that time was alsosettled under this doctraine.Then, due to revolutionary change of society, the gender equality wasin existance. But only in form. The purpose was to change thediscrimination in treating male and female. This system was establishedbased on the principle of treating the same matter on the same way.However, in substance, it did not help the female at all. Therefore, highdegree of political involvement must exist to help the female in strugglingfor more resource. The center purpose was anti-class. Under this system, thestandard was set for reviewing the reasonableness of the differencesbetween genders. Therefore, female get more protections under the saidsystem.Based on the principle of anti-class, the law was passed to protect thedignity and the personal security of female to eliminate genderdiserimination against female and to promote equality of both genders(subsection six of tenth amendment of our Consitution). For example, ”theGender Equality in Education Act” and ”Gender Equality in EmploymentAct“ were passed to promote the establishment of a harmony society, and topromote the working environment. This principle becomes the common understanding in gender equality area.

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