Transcript·文字实录

在中国每4名已婚妇女中就有1人遭受过某种形式的家庭暴力，这一数据来自于全国妇联在2011年组织的一项全国调查。目前，立法者已经进入到立项论证的最后阶段——评估中国是否需要一部专门的反家庭暴力法，以及立法的社会和法律环境是否成熟。2011年全国人大宣布将制定反家庭暴力的法律列入立法工作计划，但参与立项论证的一些专家告诉我们，中国是否需要为此立一部专门法律，这个问题一直存在很多阻力和分歧。

One in four married women in China has experienced some form of domestic violence. That's according to a 2011 national survey by the All-China Women's Federation. Now, lawmakers are entering their last stage of assessing China's need for a law against domestic violence and if the country's social and legal environments are ready for one. The National People's Congress announced in 2011 it would consider introducing legislation on domestic violence, but experts involved in the assessment told us there have always been many obstacles and different views on whether or not China needs such a law.

事实上，这样的讨论已经超过了十年。但从2011年底以来，立法的研究和调查速度明显加快。在去年10月，全国人大组织了一个专家组开展调研工作，研究制定反家暴立法的可能性。今年年初，专家组完成了评估报告并递交给了全国人大。在报告中，专家组指出，中国有必要就家庭暴力制定一部专门的法律。2012年3月，全国妇联副主席、全国政协委员甄砚，呼吁全国人大加快反家暴法的立法进程。

In fact, the discussion has been going on for more than a decade. The research and investigation process, however, has sped up significantly since late 2011. In October, the National People's Congress organized a team of experts to research and investigate the possibility of making a law on domestic violence. Earlier this year, the research team finished its assessment report and handed it over to the National People's Congress. In the report, the team suggests it is necessary for China to pass a specialized law on domestic violence. In March 2012, Zhen Yan, vice-chairwoman of the All-China Women's Federation and a member of the Chinese People's Political Consultative Conference, called on the National People's Congress to speed up its processes of introducing legislation on domestic violence.

那么目前立法进行到了什么程度？我们在演播室电话采访了蒋月娥，她是立法过程中牵头呼吁的专家之一。

What's happening with the legislation? We called Jiang Yue'e from our studio. She's one of the few leading experts in pushing the legislation process.

冯欣：现在的进展怎么样？

Feng Xin: What's happening with the legislation?

蒋月娥：现在相关的论证报告在进行修改完善，来提交人大常委会讨论，常委会还没有正式讨论。

Jiang Yue'e: Relevant assessment reports are being edited and improved in order to be submitted to the NPC's Standing Committee for discussion. The Standing Committee hasn't discussed it formally yet.

冯欣：那如果立法要进一步往下走，目前需要克服什么样的阻力呢？

Feng Xin: If the legislation needs to move forward, what obstacles does it have to overcome?

蒋月娥：应该说全国人大对立法这个问题也是高度重视。我认为这项工作上升到立法的高度是有一定的难度的，特别是有这样一种认识，觉得家庭暴力是家庭的事务，公权力怎么来干预？

Jiang Yue'e: I must say the NPC pays a great deal of attention to the legislation. However, I think when a project is brought to the level of legislation, difficulties do exist. There is a view that domestic violence is a matter of the family; how can state power come to intervene?

冯欣：可能很多人都有这样一个问题，家庭暴力是不是真有这么严重，一定要立一部法？这个您怎么看？

Feng Xin: People might have a question like, is domestic violence really serious that we have to have a specialized law. What's your opinion?

蒋月娥：我个人认为，立法并不是说这个问题严重了，我们才立法。因为立法是为了规范人的行为，它有很大的成分是为了预防、制止，不仅仅是说法律的惩治。

Jiang Yue'e: In my own opinion, we make a law not because the problem has turned serious but to regulate people's behaviors. A large part of it is to prevent and stop rather than just to punish.

那么中国的家庭暴力到底有多严重？

But how serious is domestic violence in China?

报告显示，2004到2008年全国妇联平均每年收到4万至5万起家暴投诉。

Various reports show the All-China Women's Federation received between 40,000 and 50,000 domestic complaints each year from 2004 to 2008.

2011年，一项对中国妇女社会地位的调查显示，超过24.7%的已婚妇女曾经遭受过某种形式的家庭暴力，比如身体暴力、性暴力、精神暴力、限制人身自由和经济控制。5.5%的受访者明确表示曾经遭受过身体暴力。

A 2011 national survey on women's status shows more than 24.7 percent of married women in China have experienced some form of domestic violence, like physical assault, sexual abuse, mental abuse, physical confinement and economic deprivation. 5.5 percent of respondents reported in explicit terms that they had been physically abused.

冯欣：要立这样一部反家庭暴力法，现在有哪些立法难点呢？

Feng Xin: If we were to make a law on domestic violence, what would be some of the difficulties?

林建军：应该说，是不是立专门的防治家庭暴力的法律，本身现在就存在分歧。一部分人认为修改现行的法律就可以了，当然还有相当一部分人认为应当制定专门的防治家庭暴力的法律。所以说，是专门立法还是修法，存在分歧，这本身就是一个难点。

Lin Jianjun: I'd say the question – whether or not we need a specialized law on domestic violence – itself is a difficult matter. Some people think we only need to amend our current laws, but of course there are a considerable number of people who think we should make a specialized law. So the disagreement itself is a difficulty in the legislation process.

冯欣：那您怎么看呢？您的意见是什么？

Feng Xin: Then what do you think?

林建军：我个人更倾向于制定专门的家庭暴力防治法，这个法的功能定位不仅仅局限于事后制裁，还要涉及到事先预防，而且也不仅仅局限于对施暴人的制裁，还要涉及到对受害人的救济和保护。所以说所有这些功能很难在一部私法或者公法中涵盖在内，它应当是一个综合性的社会法。

Lin Jianjun: I'm more in favor of a specialized law on domestic violence. The function of the law shouldn't be limited to punishment after violence. It should also involve prevention of violence. The law should also not be limited to the punishment of the perpetrator but also the rescue and protection of the victim. It's very hard for a private law or public law to include all these functions. It should be a comprehensive, social law.

就立法而言，中国共有29个省和自治区出台了地方性的反家庭暴力法规或条例，但是国家级的专门立法还是空白。

Legislatively, 29 Chinese provinces and special administrative regions have passed local administrative laws and regulations on domestic violence, but a specialized national law does not exist.

在世界范围内，超过80个国家和地区有专门针对家暴的立法。

Worldwide, more than 80 countries and regions have passed laws on domestic violence.

2009年，香港特别行政区通过了《家庭及同居关系暴力条例》，当时香港的立法者都经历过哪些争论？有哪些问题大陆也有可能遇到？

In 2009 the Hong Kong Special Administrative Region passed its Domestic and Cohabitation Relationship Violence Ordinance. What were some of the issues Hong Kong lawmakers debated? What legislative questions is the Chinese mainland likely to encounter?

我们采访了陈婉娴，她曾是香港立法会的议员，并参与了香港反家暴法的立法过程。

We talked to Chan Yuen-han, who took part in Hong Kong's legislation process while she was a member of the region's legislative council.

冯欣：陈议员，在警方处理家庭暴力案件的时候，警方一般会遇到什么困难呢？

Feng Xin: Councilor Chan, when police officers deal with domestic violence what problems do they often encounter?

陈婉娴：当然求证是最大的困难。几件很大的案件，当被打的人曾经多次到警察局要求处理，但是警方没有跟进调查，后来产生（更多殴打），最后死亡。引起很多人很大的意见，对警方也有很多的批评，就尝试去立法。

Chan Yuen-han: Finding evidence is the biggest difficulty. There were several major cases where the victim reported to the police many times, but the police didn't follow up. This then led to more beating. The victim eventually died. Such cases brought about a lot of public criticism. People then tried to make legislation.

冯欣：这个条例建立的过程是怎么样的？

Feng Xin: How did the legislation process go?

陈婉娴：首先在立法会，有一个审议的过程。当时我还是立法会的议员，在立法过程中，我们有不少的公听会。不同的人来提意见，我也参与在内，当时的讨论是很广泛的。

Chan Yuen-han: First, in the legislative council there was a public hearing process. I was a member of the council at the time. During the process, we had quite a lot of public hearings. Many people came to express their opinions, as I did. The discussion was quite comprehensive.

冯欣：那当时讨论的都是什么话题呢？

Feng Xin: What topics were being discussed?

陈婉娴：首先是政府最初不愿意将家庭里面（发生的）夫妻殴打列入法律的保障里。后来我们无数（次地）争取很多年，政府同意要立法。在这个过程当中，有两个很大的争执，就是婚姻的定义在哪里。婚姻可以以异性为主的还是同性也行的吗？这个是一个很大的争议。另外一个争议就是有关保障的范围，父母、老人家也是否包括在里面吗？儿童也应该包括在里面吧？这也是很大的争议。我觉得在传统的中国人里面，一般是家丑不出屋门，你要冲破这个传统的概念是很重要的一步。我认为任何家里总有事情发生，在华人的社会，要同意我们的观点是难的。所以当我在全国妇联里面知道有一批先行者也想推这个法，我说，“好”，正视社会的问题。这个问题就是如何解决家里不能处理的问题，起码我立个法，去影响任何准备施暴的人士，（给他们）一个警戒，让他们不能乱来。

Chan Yuen-han: At first, the government didn't want to make a law to cover couples' fights in their own homes. After we strived to create legislation for many years, the government eventually agreed. During the process, there were two main arguments. What's the definition of marriage? Does it have to be between two people of the opposite sex? Or can it be between people of the same sex? This was a big argument. Another was about the scope of the law. Are parents and the elderly included in the law? Or maybe children should be included, as well. This was also a main argument. I think in traditional Chinese culture, people don't wash their dirty laundry in public. It's important to break up the traditional concept. I believe any family can have issues. It is hard to gain support in Chinese societies, so when I heard in the All-China Women's Federation there are a group of predecessors who also want to push for the law, I said, "Great". They are facing a social issue. That issue is how to solve problems that cannot be solved behind closed doors. If we have legislation it can at least warn those who are about to commit violence and make them to step back.

冯欣：那法律在这个过程中起到什么作用？

Feng Xin: So what role do you think the law is playing?

陈婉娴：教育，很重要。今天经常还是有很多团体邀请我去听他们的困难，我觉得起码多很多人认识这个问题。以前，这就是小事嘛，丈夫打妻子是没问题的，打老人家更不是问题，以前是这样的，但是现在不是，起码在教育上引导大家去认识，我觉得这个很重要的。

Chan Yuen-han: Education. It's very important. Today many groups still invite me to listen to their members discuss their experiences. I think at least there are more people who are aware of the issue. (Domestic violence) was just a small matter. It was OK for husbands to beat their wives. It was also OK for wives to beat their husbands –not to mention beating elderly people at home. It used to be like this, but it's no longer the case. At least in terms of education, I think (the law) is very important.

陈婉娴谈到了几个香港立法者和居民当时需要讨论的问题，比如家庭暴力的定义以及取证的难度。那么大陆应该如何来解决这些问题呢？我们会在下期解析这些问题。

Chan Yuen-han mentioned several questions Hong Kong lawmakers and residents had to think about when drafting their legislation on domestic violence, for example, the concept of domestic violence itself and the difficulty in proving it. How will or should the Chinese mainland address these questions? We will look into them in our next episode.

Archive · 往期

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解析中国预算

How can ordinary people make sense of China's budget?
普通人如何能弄懂中国的预算？

What makes it difficult for graduates to find jobs?
大学生就业难，难在哪？

Why do we often hear stories about college graduates unable to find jobs? -- 为什么我们经常听到毕业生找不到工作的事？

Does China have enough jobs for college graduates?招工难，难在哪？

What makes it difficult for employers to recruit enough workers? And what makes it difficult for job seekers to find such employers? 是什么造成了用人单位的“招工难”？又是什么让求职者难以找到这些雇主？

Does China have enough money to fund its pensioners?
中国有没有足够的养老钱？

How much money can we receive after we retire? At what age should we start planning our retirement? 退休后我们到底能领多少钱？到什么年龄应该计划养老问题？

Should Chinese people retire later?
中国人是否应该晚退休？

In what social context is the government’s proposal to push back China's retirement age rooted? 6月5日，人力资源和社会保障部提出，未来会逐步将退休年龄推迟五年。这样做有什么深层的社会原因？

Illegal immigrants: China's rise as a land of opportunity?
“三非”外国人：中国成为机会之地？

Is the increase of incidents involving illegal immigrants a symbol of China's rise as a land of opportunity? -- "三非"外国人日益增多，是否意味着中国成为机会的土壤？

Legislating domestic violence in China: Concepts - 中国反家庭暴力立法：概念

Digest China explores the concept of domestic violence and the difficulty in proving it. 本期探讨“家庭暴力”这个概念的本身和取证的困难。

Legislating domestic violence in China: Obstacles - 中国反家庭暴力立法：难点

Digest China explores some decade-long obstacles and difficulties in the process. 本期《解析中国》探讨中国反家庭暴力立法进程中长期存在的阻力和分歧。