兒少身心不受傷害權的憲法建構與檢討

Translated title of the thesis: The Construction and Review of Children’s Right not to be Mentally and Physically Harmed in Constitution
  • 碧玉 陳

Student thesis: Master's Thesis

Abstract

Due to the history of the Natzi, German enumerates the right not to be physically harmed in Constitution. It is believed that people should have the autonomy of their body and mind, and their body and mind should be free from any harm. However, there is no counterpart law in our constitution that guarantees the right not to be mentally and physically harmed as fundamental rights. In fact, corporate punishments were very common in Taiwan and it explains that our fundamental rights do not contain the right not to be mentally and physically harmed. Hence, in our country, the right to be free from mentally and physical harm should be protected by Constitution. Thus, some experts think that the right not to be mentally and physically harmed belongs to inherent rights due to the importance of it. However, the thesis thinks that the right not to be mentally and physically harmed belongs to the summed up rights in Constitution, which are listed in Article 22, because the claim of inherent right is too subjective and easy to change by interpretations. In addition, through the functional construction of fundamental rights, which refers to identifying the functions of subjective and objective laws, the right not to be mentally and physically harmed can be fully embodied in our country.
After clarify the constitutional basis of the right not to be mentally and physically harmed, the thesis wants to focus on the practice of children’s right not to be mentally and physically harmed. To be specific, the thesis studies the practice of rights not to be mentally and physically harmed for children in Taiwan from the aspects of school and home, where children spend most of their time living. Among it, corporal punishment in school is the most common one in violating children’s right not to be mentally and physically harmed. In regard thereof, zero corporal punishment education policy is recognized by the Article 8 and 15 of Education Basic Law in 2006. From then on, Taiwan has become the 109th nation to forbid corporal punishment in the world. In the past, corporal punishment was esteemed as the discipline right of teachers. However, corporal punishment has great effect upon students’ personality. Accordingly, corporal punishment not only infringes the facilitation of student’s personality freedom which is the core of fundament right for education, but also breaches students’ right not to be mentally and physically harmed.
Besides, after the Judicial Yuan Interpretation No. 382 which affirmed the fundamental rights for students, the then dominating view of the special power relationship was gradually replaced by the legal relationship. Hence, zero corporal punishment is the fundamental principle of education in Taiwan. From now on, actors such as state, schools, teachers, and parents must work together in realizing zero corporal punishment education in school. Only if we make effort on practicing zero corporal punishment education, our schools are more likely to become an appropriate arena for students to cultivate their character.
Moreover, abuse in family is the most common one in violating children’s right not to be mentally and physically harmed. In fact, family, as the basic unit of society, has its inherent function. Even though the role of family varies from time to time, its functions, such as socialization and emotional support, cannot be replaced. Hence, to maintain the valued character of development of family, we should its autonomy. Namely, family, belonging to the private field, should not be intervened by public power of nation state. However, as fundamental rights are enumerated in Constitution, the protection of them will from the order of values in constitutionalism. To be precise, the protection of fundamental rights has radiating power, which can affect the values in both public and private fields. Therefore, the protection of fundamental rights provides the proper basis for nation state’s public power. It can't be denied that, children are the minor group in a family, so the thesis needs to study the practice of children’s right not to be mentally and physically harmed in family.
As a matter of fact, an excess of discipline turns to abuse. When parents exercise their discipline power towards children, it will lead to the mental and physical harm of the children. Since abuse has a great effect upon children’s personality and the core of parental rights is for children’s good, state can protect children from abuse by limiting parental rights; namely, states can limit parental rights to guarantee children’s right not to be mentally and physically harmed. However, another problem appears: though the purpose of limiting parental rights is to secure children from being harmed, yet it will infringe children’s right to grow up in the family. Owing to children’s right to grow up in the family is part of personal rights, which is guaranteed by the Constitution, state should ensure its constitutionality in limiting children’s right to grow up in the family. The thesis believes that the constitutional legitimacy of state to limit children’s right to grow up in the family is based on the best interests of the children. Last but not least, family has it irreplaceable functions. The goal of States to limit parental rights is not to replace the functions of family, but to assist family instead
Date of Award2009 Apr 24
Original languageChinese
SupervisorYue-Dian Hsu (Supervisor)

Cite this

兒少身心不受傷害權的憲法建構與檢討
陳, 碧. (Author). 2009 Apr 24

Student thesis: Master's Thesis