摘要
统计分析147件人民法院审结的涉及职场性骚扰的民事诉讼案件,发现在我国当前发生的职场性骚扰中,妇女指控男性实施职场性骚扰的占九成多;逾四成案件是上司或上级涉嫌骚扰下属或下级;肢体行为占性骚扰近五成;约四到五成的用人单位在规章制度中明确有防治性骚扰的规定。但是,只有不足三成职场性骚扰指控获得法院确认,其中,职场性骚扰取证难、举证难是重要原因;受害人救济不充分问题也比较突出。为减少和消除职场性骚扰,法律应明确采取“零容忍”立场,采取预防为主,教育、矫治和惩处相结合,增加干预措施和强度。利用修改《妇女权益保障法》的契机,建议立法界定性骚扰的概念,以促进性骚扰的统一认定;明确用人单位防治性骚扰的主体责任,建立单位反性骚扰的机制;规定干预措施、程序规则、处罚规则和救济程序。在司法中,明晰各方的证明责任,适当地降低职场性骚扰指控者的举证责任负担;合理确定损害赔偿范围和赔偿水平,从而公平保护各方利益主体的权益。
Through statistical analysis of 147 civil litigation cases involving workplace sexual harassment trial concluded by the People's Court concerned,it is found that in workplace sexual harassment cases in China,more than 90%cases were accused by women against men of sexual harassment;in more than 40%of cases,bosses or superiors harassed subordinates or inferiors;physical behavior was the main one,close to 50%among the main forms of sexual harassment;however,less than 30%of allegations of sexual harassment in workplace were successfully confirmed by the court.Among them,the main reason for losing cases for the plaintiff to accuse defendants was the difficulty in obtaining evidence and producing evidence for workplace sexual harassment.The problems of poor relief channels and ambiguity are more prominent.In order to diminish and abolish workplace sexual harassment,"zero tolerance"should be adopted,prevention should be taken first in combination with education,correction and punishment,and meantime intervention measures and intensity should be strengthened in Chinese law.It is proposed that in the forthcoming amendment of the Law of the People's Republic of China on the Protection of Women's Rights and Interests,the concept of sexual harassment should be defined in order to unify the identification standards of sexual harassment;the employer's responsibility for sexual harassment prevention and control should be clarified,and anti-sexual harassment mechanism should be established;intervention measures,procedural rules,penalty rules and relief procedures should be stipulated.In the judicial proceeding of those cases,the burden of proof among all parties should be clarified so as to appropriately reduce evidence burden for workplace sexual harassment victims;the scope and level of damage compensation should be reasonably confirmed to impartially protect the rights of all parties.
作者
蒋月
苏琦
潘锦涵
JIANG Yue;SU Qi;PAN Jinhan
出处
《中华女子学院学报》
2021年第6期40-53,共14页
Journal of China Women＇s University
关键词
职场性骚扰
裁判案件
数据分析
法律困境
完善路径
workplace sexual harassment
civil cases
statistical analysis of data
legal dilemmas
proposals to improve
