邁向非暴力教養社會—從落實兒童權利公約之禁止體罰法制開始

Abstract

長久以來不論在東西方，體罰兒童都是司空見慣的社會現象，而體罰在我國之所以作為常見之兒童管教方法，係受傳統社會文化中的孝道思想，以及由其所發展出之嚴教觀所支撐，並且仍潛伏在現今社會影響兒童的教育思維。即便隨著我國社會人權意識提升，帶動對於兒童權利之關注，我國在法律上亦僅止於校園體罰之禁止，並且在落實上面臨諸多質疑與挑戰，社會各界對於體罰侵害兒童人權之關注，亦多停留在校園的體罰案件，而未深入到兒童生活休戚與共的家庭當中。 國際人權法之聯合國〈兒童權利公約〉係特別以兒童為權利主體，所建制出之權利保障架構，其對於兒童體罰所抱持之見解，除反映出當代人權思維對於兒童體罰之評價而殊值參酌外，更因我國於2014年經由立法院通過及施行〈兒童權利公約施行法〉，使該公約之規定具有國內法律之效力，而應將之融合於我國法律體系中。本文除肯認〈兒童權利公約〉自兒童受教權、健康權、發展權、不受一切形式暴力侵害，以及不受殘忍或有辱人格之懲罰等權利依據，否定對於兒童施以體罰之正當性外，亦支持公約認為應於學校及家庭全面禁止體罰之主張，並引介聯合國兒童權利委員會針對上開兒童權利所出具之一般性意見當中，提出禁止體罰法制在立法措施上應符合之標準，檢視我國現行法律規定與該標準之異同，以茲作為日後禁止體罰政策研擬及法律修正之參酌。 公約就禁止體罰所提出之立法標準，首要者為廢除任何容許體罰作為管教兒童手段之法律規定，並且必須在法律上明確禁止體罰，若體罰之行為或結果已構成刑法上之犯罪者，即應負相關之刑事責任。此項立法標準，原則上適用於家庭、學校、或各種兒童照顧機構，並且不論所採取之手段如何輕微、合理，皆無法證立體罰之正當性；惟考量兒童與家庭成員密切之依附關係，對其身心發展至關重要，若體罰係由家庭成員或主要照顧者所為，應有兒童最佳利益原則與法律不涉細瑣原則之適用評估，以獲致符合兒童最佳利益之處置；反之，若係由家庭系統外之學校等教育照護機構之從業人員所為，則應嚴格進行職業紀律懲處程序，甚或進入刑事司法程序予以調查審判。 我國〈兒童及少年福利與權益保障法〉僅規定禁止虐待兒少身心，此規範密度與強度無法達成公約禁止體罰之立法要求，應於該法律中明文禁止體罰，使我國成為全面禁止體罰之社會，並可以之作為民法上父母行使子女懲戒權時之限制，解消我國因〈民法〉上父母懲戒權之規定，而容許家庭場域中輕微合理體罰之問題，而在〈家庭暴力防治法〉中亦宜將體罰增列為家庭暴力行為，以適當引入社工之瞭解協助，並作為保護令申請之事由，防範體罰演變為兒童虐待事件之風險。教育法制整體上之規定，應係合乎兒童權利公約之標準，惟如何確實達成零體罰之規範目標仍待詳加研究。而在公約標準下，我國〈刑法〉處理體罰問題之困境在於，如何判定家庭內之體罰事件情節之輕重，以妥適處理體罰行為人應否受刑事追訴處罰，以及如何將體罰常見之非公然之言語與精神暴力納入刑法規範，而尚賴刑法學界與實務界之理論建構。

Corporal punishment on children has long been common in both Western and Eastern societies and has been a common way of disciplining children in our country because of the traditional filial piety culture, and the subsequently developed concept of “iron and blood disciplines make good children.” In other words, it is now still subtly affecting the mindset of children rearing and education in modern society nowadays. As human rights awareness raising, and subsequently drawing the society’s attention on young children’s rights, our country has made it a clear law forbidding corporal punishment, but only at school. Even that, banning corporal punishment at school still brings a lot of questioning and challenges in practice. The focus concerning the violation of human right on children because of corporal punishment from the society is also limited to on campus, and this attention does not extend beyond the very environment where children live their lives each day—the family. The United Nation Convention on the Rights of the Child proclaims that children are the subjects of human rights. The structural protection of rights provided by the Convention reflects how modern human rights objects corporal punishment on children. Taiwan has enacted the Enforcement Act of Convention on the Rights of the Child in 2014 and is liable for merging the contents of the Convention into Taiwanese legal system enacted as national law. This article supports the argument of the Convention for non-corporal punishment both on campus and at home, and agrees with the methodology adopted by the Convention to deny the justification of corporal punishment on children that children are entitled to the rights of education, health, and development and are free from any forms of violence, as well as any torture or any other form of cruel, inhuman or degrading treatment or punishment. General Comments of the Convention illustrating the above mentioned rights of the child are drawn in this article as main sources for elaborating the legal standard of legislative measures to forbidding corporal punishment, and reviewing present laws and regulations in comparison with the standard set forth by the Convention as a future reference for drafting anti-corporal punishment policy and law revisions. Convention on the Rights of the Child has advised the legislative standards of forbidding corporal punishment as follows. The first is to abolish any law or ordinance that allows corporal punishment as a method of children discipline. Furthermore, the law should clearly state that the corporal punishment is prohibited, and if any conduct or consequence amounts to a crime under the Criminal Law, the offender shall be subject to consequential criminal liability. This set of legislative standards fits into all families, schools, or child-caring institutions. Also, no matter how “minor” or “reasonable” of the said corporal punishment, there is no ground to justify it. However, in consideration of the close attachment between children and family members, and such relationship plays a significant role in the mental and physical development of children; therefore, if corporal punishment is conducted by family members or other main care-takers of the children, there should be an evaluation of the children’s best interest, along with the de minimis principle in order to reach the solution that fits the best interest of children. However, if such conduct is otherwise performed by non-family members, for example, school teachers or staffs in other child-caring institutions, then a strict vocational discipline and even criminal prosecution procedures for investigation shall apply. The Protection of Children and Youths Welfare and Rights Act in Taiwan only forbids mental and physical abuse on children and thus its intensity of regulation is much less than the legislative standards required by the Convention. Corporal punishment should be explicitly denounced illegal to fully free our society from the haunting of corporal punishment, and the performing of the parental discipline rights under Civil Law, which has been a safe gate for still allowing “minor” or “reasonable” physical punishment in family setting, shall also be limited to methods without performing corporal punishment. Domestic Violence Prevention Act should include corporal punishment as a form of domestic violence; hence, the involvement of social workers may be simultaneously and properly introduced for better understanding of the case to figure out appropriate assistance needed, in addition, subjecting to court’s judgment, corporal punishment should also serve as the cause of filing a civil protection order under Domestic Violence Prevention Act so as to prevent it from further turning into a child abuse case in the future. The overall legislative measures of education regarding prohibition of corporal punishment seems generally comply with the Convention; however, there is still room for research on tactics to better achieve the regulated goal of zero physical punishment in practice. Under the standards set forth by the Convention, we are still await for academic and empirical debates and discussions on theories of Criminal Law to find out appropriate solution to whether and how to punish physical punishment offender within family according to the severity of the case as well as the solution to deal with language abuse or mental abuse in private venue.