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Legislative Protection for Women's Rights and Interests after the Founding of the People's Republic of China
September 23,2014   By:CSHRS

Li Mingshun

China

The process of legislative protection for women's rights and interests of the new China can be divided into two phases: The first phase is from the establishment of the People's Republic of China to the adoption of the policy of reform and opening up to the outside world, and the second phase is from reform and opening up to present.

I. Historical changes of Chinese women's legal status after the founding of the new China

It is known to all that in old China when men were supposed to be superior to women on the basis of inequality of sex, women's rights were extremely neglected and infringed and were excluded by laws for a long term. Women did not have any political rights and were totally insulated from social life. They had to depend on men economically, since they did not have property right and right of inheritance; they did not have social position and were required to be obedience to their fathers before marriage, their husbands after marriage and their sons after their husbands died; they did not have independent personality or status and were deprived of their rights of education and social activities; they could not decide their marriage and must follow the orders of their parents and matchmakers and were required to be faithful to their husbands to the end; they were ruined both physically and mentally and were oppressed by polygamy and prostitution systems. Even in the Republic of China period, women were not duly liberated owing to the limitation of bourgeois revolution. Inequality between men and women was still the social mainstream at that time and stipulations of discriminating women can be found in various laws.

In order to prevent women from being discriminated in society and family, the new China totally abandoned and nullified the laws and judicial systems that discriminated, oppressed and ruined women handed down from the old China; it also timely made new laws featuring sex equality and protection of women's rights and interests to affirm and protect the rights and interests of women in a legislative manner. The legislation of the new China greatly changes the legal status of women. The changes include:

The Common Program, which served as the interim Constitution, declared that women enjoyed equal rights with men in the new China. On September 29, 1949, the First Session of the Chinese People's Political Consultative Conference adopted the Common Program of the Chinese People's Political Consultative Conference, which served as the interim Constitution at that time. Article 6 of the Common Program stipulated, "The People's Republic of China shall abolish the feudal system which holds women in bondage. Women shall enjoy equal rights with men in political, economic, cultural, educational and social life. Freedom of marriage for men and women shall be put into effect." Article 48 further stipulated, "National physical culture shall be promoted. Public health and medical work shall be expanded and attentions shall be paid to the protection of the health of mothers, infants and children." These stipulations announced the equality of the legal status of men and women and initiated a new era of women's liberation.

The issuance of the Marriage Law thoroughly overturned the feudal marriage and family system of discriminating and oppressing women. On April 13, 1950, the Seventh Session of the Central People's Government Committee adopted the Marriage law of the People's Republic of China. Based on the spirits of abolishing the feudalism marriage system of arbitrary decision made by a third party by force, men being superior to women and neglecting children's rights and implementing the neo-diplomatic marriage system of free choice of partners, monogamy, equality between men and women, protecting the rights and interests of women and children, the new China affirmed the basic principles of equal rights of men and women and protection of women's rights in the form of law, making women the greatest beneficiaries of the implementation of the Marriage Law.

Thanks to the implementation of the Land Reform Law, women in rural areas also got lands like men and became land owners, fundamentally changing the unequal economic status between men and women. On June 28, 1950, the Eighth Session of the Central People's Government Committee adopted the Land Reform Law of the People's Republic of China, which not only clarified the principle of "distributing lands according to the population", but also showed due concerns to special women groups such as martyrs' wives and widows. Meanwhile, in order to protect women's interests during land reform and their due social rights, Comrade Liu Shaoqi, while explaining the draft of Land Reform Law, specially stressed that "farmers' association should pay attention to absorb women in rural families as members and absorb women actives to participate in leading work. In order to protect women's interests in land reform and their due social rights, and discuss women-related issues, it is necessary to convene women's conferences or congresses in farmers' associations."

New China's first Constitution affirmed the absolute equality between men and women in legal status in the form of the state fundamental law, and stressed on the special protection for women's rights and interests. The Constitution of the People's Republic of China was solemnly adopted at the First Session of the First National People's Congress of the People's Republic of China held in the capital Beijing on September 20, 1954. Article 86 of the Constitution stipulated, "All citizens of the People's Republic of China who have reached the age of 18 have the right to vote and stand for election, regardless of nationality, race, sex, occupation, family background, religious belief, education, property status, or length of residence, except persons with mental disease and those deprived of political rights according to law. Women have equal right to vote and stand for election with men." Article 96 further stressed, "Women in the People's Republic of China enjoy equal rights with men in all spheres of life, political, economic, cultural and social, and family life; marriage, the family, and mother and child are protected by the state."
   
The formulation of Regulations on Administrative Penalties for Public Security provided legal protection of the rights of person for women. On October 22, 1957, the 81st Session of the Standing Committee of the National People's Congress adopted Regulations of the People's Republic of China on Administrative Penalties for Public Security, stipulating that those who take liberties with women with obscene language or behaviors shall be detained for a maximum of 10 days or given a warning. This stipulation highlighted the protection of the rights of person for women.
    
A series of laws related to women after the founding of the new China effectively protected women's legal rights and interests, leading to the historical liberation of women in China. After liberation, women extensively participated in the activities in political, economic, cultural and social spheres, becoming a great force of constructing and defending the motherland. However, we must also see that laws related to women during this period, though leading to earth-shaking changes to women's legal status in China, were not systematic themselves with many weak links in legislation and law-enforcement mechanisms. Meanwhile, with the spread of leftism, democracy and the system of ruling by law were destroyed and trampled. Under the circumstance, laws of protecting women's rights and interests were impossible to exert their due roles.

II. After the reform and opening up to the outside world, China has established the legal system of protecting women's rights and interests

After adopting the policy of reform and opening up to the outside world, China entered a new historical era in its socialism democracy and law-based-governance construction. To comply with the situation, China's woman-related legislation work has taken on a new aspect. In the early stage of the reform and opening up, China issued new Constitution (1982), Electoral Law (1979), Criminal Law (1979), Criminal Procedure Law (1979), Marriage Law (1980), Law of Succession (1985), General Principles of the Civil Law (1979), Compulsory Education Law (1986), Civil Procedure Law (1991) and the Decision on Severely Punishing Criminals of Kidnapping, Selling and Abducting Women and Children (1991) and other important laws, endowing women with the equal rights with men in the fields they are applicable, and corresponding special protection for women. Here I would like to stress a few points. First, the Constitution issued in 1982 again affirms the total equality in legal status of women and men in the form of the national fundamental law on the basis of the Constitution of 1954 and taking into consideration the reality of the new era, and reiterates the special protection for women's rights and interests. The guiding principles in the Constitution provides legal basis and point out the direction for enacting other laws, regulations, rules and institutions of protecting women's rights and interests; second, the Criminal Law of 1979 specially stipulates the crime with women as the aggression objects, such as the crimes of raping a woman or having sexual relations with a girl, with severe criminal punishment. It also stresses that the death penalty shall not be applied to a woman who is pregnant at the time of trial; third, thanks to the spirits that "The marriage system based on freedom, monogamy and equality between man and woman shall be implemented. The lawful rights and interests of women, children and old people shall be protected. Birth control shall be practiced", and the stipulations that "Having gone through the registration procedures, the woman may become a member of the family of the man and the man may also become a member of the family of the woman, whatever is agreed upon by both parties", "Both husband and wife shall be equal in familial status", and "At the time of divorce, both husband and wife shall agree upon the disposal of the jointly owned property; if they fail to come to any agreement, the people's court shall decide the disposal thereof, taking into consideration the actual circumstances of the property and following the principle of favoring the children and the wife" in the Marriage Law of 1980, women benefit greatly from the implementation of the law; fourth, the Decision on Severely Punishing Criminals of Kidnapping, Selling and Abducting Women and Children in 1991 is playing an important role in cracking down on the criminal activities of selling and kidnapping women and children and protecting their personal safety.

In order to implement related prescriptions of the Constitution, improve the socialism system of ruling by law, perform the obligation of related international conventions China participated in and embody the advantage of the socialism system, China issued Law of the People's Republic of China on the Protection of Rights and Interests of Women in 1992. Through affirming various rights and interests of women in an all-round way such as their political rights, rights and interests in culture and education, labor rights and interests, property rights and interests, rights of person and rights and interests in marriage and family, and stipulating the coordinative, complementary, procedural and punitive clauses, the law has become the basic law to comprehensively and systematically protect women's rights and interests in an all-round way. The first law to comprehensively protect women's rights and interests in Chinese history, the issuance and implementation Law on the Protection of Rights and Interests of Women is not only a great event in women's political life, but also a great event in China's socialism democracy and legal construction, indicating that China has established a complete set of laws of protecting women's rights and interests and promoting equality between men and women, which is based on the Constitution, with the Law on the Protection of Rights and Interests of Women as the principal part, and include various independent laws, regional regulations, administrative rules of various governmental departments and a series of human rights related to women's rights and interests ratified by China.

After the issuance of the Law on the Protection of Rights and Interests of Women, other laws related of protecting women's rights and interests and promoting equality between men and women were improved constantly with the deepening of the reform and opening up to the outside world and the development of socialism with Chinese characteristics. After that, a series of laws which are closely related to women's rights and interests were modified and formulated, such as Labor Law (1994), Law on Maternal and Infant Health Care (1994), Law on the Protection of Rights and Interests of the Aged (1996), Criminal Procedure Law (modified 1996), Criminal Law (modified 1997), Marriage Law (modified 2001), Law on Population and Family Planning (2001), Law on Land Contract in Rural Areas (2002), Law on the Protection of Rights and Interests of Women (modified 2005), Law on Public Security Administration Punishments (2005), Compulsory Education Law (modified 2006), Real Rights Law (2007), Law on Employment Contracts (2007), Employment Promotion Law (2007), Law on the Protection of Minors (modified 2007) and Law on the Protection of Disabled Persons (modified 2008). Here, I would like to stress the following points: First, Law on Maternal and Infant Health Care of 1994 has detailed prescriptions on pre-marriage health care, health care in pregnancy and confinement period and infant health care to protect the maternal and infant health and improve the population quality; second, the Criminal Law modified in 1997 further expands the scope of crime targeting women, such as raping a women, having sexual relations with girls, acting indecently towards or insulting a woman by force, abducting and selling women and children, buying a woman or child who is abducted and trafficked in, obstructing from rescuing a woman or child who has been bought by means of gathering a crowd, luring a girl under the age of 14 to engage in prostitution and whoring with a girl under 14. Meanwhile, it has detailed description of the crimes targeting women, such as gathering crowd to commit licentious activities, luring a minor to join a crowd engaging in licentious activities, illegally conducting an operation of restoring oviduct or spermatic duct, organizing women into prostitution, forcing women into prostitution, assisting the organization of women into prostitution, luring, sheltering and introducing women into prostitution, spreading venereal diseases, organizing an obscene performance, forcibly interfering into other persons' freedom of marriage, bigamy, maltreatment, forsaking others and so on. These stipulations provide legal weapon for cracking down on the crime of infringing women's legal rights and interests; the third point is the modification of the Marriage Law in 2001. The modified Marriage law remains the spirits of focusing on the disadvantageous groups and protecting human rights of the marriage laws of 1950 and 1980. Through banning family violence, establishing the system of null marriage and reversible marriage, detailing legal devoice reasons, setting up devoice compensation system and the system to claim damages, and increasing remedy measures and legal responsibilities, the modified Marriage Law focuses more on people's needs, better protects the legal rights and interests of women, children and the aged and endows more rights to women to provide legal basis for protecting women's marriage and family rights and interests; fourth, the modified Law on the Protection of Rights and Interests of Women in 2005 clearly stipulates that "implementing equality between men and women is the national policy of the state", clarifies the law-enforcement bodies and government's responsibilities, standardizes the functions and responsibilities of women's federation, stipulates more detailed protections on women's political rights, rights and interests in culture and education, rights and interests of labor and social security, property rights and interests, rights of person and rights and interests of marriage and family, further strengthens legal responsibilities, and highlights the characteristics of the law of "clarifying rights while focusing on protection", "being both systematic and target-oriented", and "setting foot on the realities while taking into consideration the necessities and possibilities" so as to provide the legislative contents and legislative technologies of the Law on the Protection of Rights and Interests of Women with vivid Chinese characteristics and features of the era.

After reform and opening up to the outside world, China's legislative work for women shows the following features:

1. Sound interaction between national legislation and local legislation in protecting women's rights and interests

In protecting women's rights and interests, sound interaction between national legislation and local legislation has emerged. On the one hand, national legislation clarifies the principles and standards of women's rights and interests protection for local legislation, and provides enough legislative space for local regulations; on the other hand, local legislation strengthens the pertinence of laws and regulations, makes up defects of unspecific stipulations in national laws and regulations and accumulates experience for improving national legislation. This is extremely prominent in the formulation and modification of the Law on the Protection of Rights and Interests of Women and the issue related to family violence. In 1992 when the Law on the Protection of Rights and Interests of Women was issued, nearly all the provinces, autonomous regions and municipalities formulated the measures to implement the Law according to their respective realities. These implementation measures, on the basis of considering the local economy, politics, culture and custom, have solved the prominent problems in women's rights and interests in their respective regions, highlighting local characteristics. In 2005 when the law was modified, various provinces, autonomous regions and municipalities also started to amend their implementation measures according to the modified Law. So far, a total of 19 provinces, autonomous regions and municipalities have modified their implementation measures. The modified implementation measures not only exceed the previous ones, but also have made contribution to the implementation of the Law on the Protection of Rights and Interests of Women.Another example is related to family violence. China's laws and regulations on family violation started from local legislation. In March 2000, Hunan Province issued China's first local regulations of combating family violence the Resolution of Hunan Province on the Prevention and Restraint of Family Violence, opening the door for the problem of family violence to enter the legislation area. The Marriage Law of the People's Republic of China in 2001 clearly stipulated the problem of family violence in the form of a national law, and hence, family violence formally became a legislative concept. The Law of the People's Republic of China on the Protection of Rights and Interests of Women modified in August 2005 stipulated the problem of family violence in the form of the national basic law and made a breakthrough compared with the Marriage Law. In return, the prescriptions in the Marriage Law and the Law on the Protection of Rights and Interests of Women also provide legal basis for anti-family violence in some localities. The above-mentioned sound interaction between national and local legislations accelerates the construction of China's law system of protecting women's rights and interests.
 
2. China's legislation work of women's rights and interests protection complies with and promotes the historical trends of protecting women's human rights in the world community

Enjoying full human rights to realize equality between men and women legally and virtually is the lofty goal of the vast women and the human beings for a long term. However, the reality of the world shows that the modern society is far from the ideal of enabling women to enjoy full human rights; women cannot share the rights and interests with men in reality equally and the phenomenon of inequality between men and women still exists in various countries and sectors to some extent. The phenomenon not only seriously baffles the comprehensive development of women cause, but also hinders the social harmony and progress. Under the circumstance, requiring the protection of women's human rights and promoting equality between men and women have become the irresistible trend worldwide. The world community and various countries in the world adopt measures, especially law-based measures to comply with the trend. In the world community, after the first international instrument on human rights Universal Declaration of Human Rights was adopted by the UN Assembly on December 10, 1948, human rights issue has been attracting the world concerns, and women's human rights is its focus. Thus, the world community has adopted a series of pacts and declaration, such as the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949), Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (1951), Convention on the Political Rights of Women (1952), Convention on the Nationality of Married Women (1957), the Declaration on the Elimination of Discrimination Against Women (1967), Declaration on the Protection of Women and Children in Emergency and Armed Conflict (1974), the Convention on the Elimination of All Forms of Discrimination against Women (1979), the Nairobi Forward-Looking Strategies for the Advancement of Women to the Year 2000 (1985), Vienna Declaration and Program of Action (1993), Declaration on the Elimination of Violence Against Women (1993), and Beijing Declaration and Platform for Action (1995), etc. The series of international human rights laws for women constitute an important part of the development of the international human rights legislation, making positive contribution to the improvement of women's human rights.

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