“村规民约”与宪法权利的冲突与衡平——以农村“外嫁女”土地权益保护为例
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摘要
近年来,农村"外嫁女"的土地权益屡遭侵害,反映了农村中性别歧视意识根深蒂固,许多农村妇女权利意识淡薄。村民在自治的起始阶段,依据党的方针政策和国家法律法规,结合本村实际所制定的歧视"外嫁女"的"村规民约",与宪法规定的基本权利相违背。面临私法自治与宪法权利的价值冲突,法官必须要把"村规民约"作为一种社会事实加以客观考量,将"公序良俗"作为宪法权利介入的一种介质;乡镇政府应对所辖地区的"村规民约"进行监督检查,同时也要增强农村妇女尤其是"外嫁女"的法律意识。
In recent years,the land rights of "married women" in rural areas have been repeatedly violated,reflecting the deep-seated awareness of gender discrimination in rural areas and many rural women's weak sense of their own rights. In the initial stage of villagers' autonomy,Village regulations and folk law which were established according to the partys policy and policies and national laws and regulations,carry with the actual development of the village of discrimination "married women",This also violates the basic rights stipulated in the Constitution. Facing the conflict of the value of private law autonomy and constitutional rights,the judge must consider the "village rules"bas a kind of social fact objectively,and take "public order and good customs" as a medium for the intervention of constitutional rights. The township government should supervise and inspect the "village rules" in the area under its jurisdiction,and also strengthen the rural women's legal awareness,especially the "married women".
In recent years,the land rights of "married women" in rural areas have been repeatedly violated,reflecting the deep-seated awareness of gender discrimination in rural areas and many rural women's weak sense of their own rights. In the initial stage of villagers' autonomy,Village regulations and folk law which were established according to the partys policy and policies and national laws and regulations,carry with the actual development of the village of discrimination "married women",This also violates the basic rights stipulated in the Constitution. Facing the conflict of the value of private law autonomy and constitutional rights,the judge must consider the "village rules"bas a kind of social fact objectively,and take "public order and good customs" as a medium for the intervention of constitutional rights. The township government should supervise and inspect the "village rules" in the area under its jurisdiction,and also strengthen the rural women's legal awareness,especially the "married women".
引文
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[2]刘忠王.农村外嫁女土地权益保护研究[D].中南大学,2011.
[3]刘志刚.民事审判中的村规民约与基本权利[J].中国人民大学学报,2010,(5).
[4]张千帆.宪法学[M].北京:法律出版社,2013.
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