论尊严与弱势群体自决权——从投掷侏儒案说开去

On Dignity and the Right to Self-Determination of Vulnerable Groups—From the Midget-Throwing Case

摘要: 从投掷侏儒案着手，揭示身有缺陷、身处困境的弱势群体所面临的法律困境：通过进行自损尊严的表演行为等谋取生存资料，此种自决行为遭到了法律的严厉禁止，然而经济条件的恶化将导致对尊严的二次伤害，因此本文欲探讨：法律能否以维护人的尊严为由限制弱势群体的自决权？通过解读尊严之由来，明确尊严与自决权的关系，结合对该群体特殊境况的考虑，为保障实质公平、避免二次伤害，公权力应当充分贯彻“意思自治”原则，尊重该群体的自决权；合理减轻该群体的尊严义务，反向界定尊严之标准与程度，个案判断并限制严重损害尊严的自决行为；为该群体提供必要的物质条件和制度保障，制定个人生存救济方案，促进尊严的实质保障与个人发展的实现。

Abstract: Starting from the dwarf-throwing case, this paper reveals the legal dilemma faced by the disadvantaged groups who are handicapped and in a difficult situation: they seek to earn means of subsistence by engaging in self-defeating performances, etc., and such self-determination is strictly prohibited by the law, but the deterioration of the economic conditions will lead to a secondary injury to their dignity, so this paper would like to explore whether the law can restrict the right of self-determination of the disadvantaged groups on the basis of the preservation of human dignity? By interpreting the origin of dignity, clarifying the relationship between dignity and the right to self-determination, and considering the special situation of this group, in order to ensure substantive fairness and avoid secondary harm, the public power should fully implement the principle of “autonomy of meaning” and respect the right to self-determination of this group; reasonably alleviate the group’s obligation to dignity, and reverse the definition of the standard and degree of dignity. The public power should fully implement the principle of “autonomy of meaning” and respect the right to self-determination of this group; reasonably reduce the dignity obligations of this group, reverse the criteria and degree of dignity, and judge and restrict the self-determination behaviours that seriously harm the dignity on a case-by-case basis; and provide this group with the necessary material conditions and institutional safeguards, and formulate the relief programmes for the individual’s survival, so as to promote the substantive protection of dignity and the realization of personal development.