作为一种法律干预模式的家长主义

作为一种法律干预模式的家长主义

Legal Paternalism as a Pattern of Legal Interference

    期刊名称：《法学研究》
    期刊年份：
    作者：黄文艺
    单位：吉林大学理论法学研究中心
    中文关键词：法律干预;法律家长主义;法理学
    英文关键词：legal paternalism;legal interference;jurisprudence
    中文摘要：
    作为一种法律干预模式，家长主义的核心特征是为了保护行为人的利益而限制行为人的自由。尽管中国各个部门法领域都不乏家长主义的法律规定，但在中国的法律话语体系中家长主义并未确立起合法地位。在梳理家长主义概念谱系的基础上，通过分析家长主义法律干预的构成条件、正当理据，可以从理论上确立家长主义作为一种独立的法律干预模式的地位。在中国的政治传统和语境下，为防止政府以家长主义之名随意剥夺或限制公民的自由，必须对家长主义法律干预的设立加以严格控制，谨慎地运用家长主义法律干预。
    英文摘要：
    Although there are some instances of legal paternalism in branches of law in China, its legitimacy in the system of legal discourse has not been recognized yet. One reason is that paternalism is a derogatory word in Chinese as well as in English. Moreover, there are many misunderstandings and prejudices towards paternalism, especially when people confuse it with other negative things. Most importantly, it has been long repressed and replaced by another powerful legal discourse, that is, non-paternalistic legal interference. In order to affirm the independency and legitimacy of legal paternalism, we need to clearly define its meaning and reasons. As an important pattern of legal interference, legal paternalism has two basic elements. Firstly, its objective is to maintain the actor’s interest, and secondly, its approach is to restrict the actor’s freedom. The reasons to support paternalistic legal interference include incapacity, economic efficiency, distributive justice, basic human rights and risk aversion.However, its affirmation doesn’t mean that we can apply legal paternalism randomly to interfere with private life. On the contrary, its application should be strictly confined in China, so as to prevent the government from arbitrarily infringing on private rights. For its application, adequate reasons should be declared, the benefits should be greater than the costs, the least restrictive alternative should be preferred, public hearings should be hold, and judicial review should be available.The effectiveness of legal paternalism is heavily influenced by its characteristics. For example, many behaviors interfered by it, such as drug abuses, prostitutions, gambling, etc., are more secret than other behaviors, so the costs of its enforcement are higher. Because the victims of such behaviors are either actors themselves or nobody, its enforcement depends on the government’s capacity rather than the victims’accusation.
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