罪犯的生育权研究

发布时间：2018-06-21 23:45

本文选题：罪犯 + 生育权　；参考：《西南财经大学》2011年硕士论文

【摘要】：生育权是人权的重要组成部分。罪犯也具有公民资格,应当享有生育权；根据“法无禁止即许可”的现代法治精神,罪犯也应当享有生育权利；根据现行宪法所确立的人权保障原则,罪犯的生育权利应该得到肯定。同时,保障罪犯的生育权具有重大意义,保障罪犯生育权,满足其本能需要,有利于基本人权实现。保障在押犯生育权,维持其婚姻家庭的稳定,有利于社会和谐。保障罪犯生育权,有助于解决人口问题和改善在押犯生殖健康。在我国现行法律中,对罪犯生育权的规定还是一个空白,但可以明确的是现行法律中没有明文剥夺罪犯生育权的规定,法无禁止即可能,罪犯理应享有生育权这项基本人权。但是要实现罪犯的生育权却是比较困难的,因为这项权利需要通过罪犯的人身去实现,而罪犯的人身自由是依法被剥夺或者进行了限制的,实际上很难如普通公民一样行使此种权利,如何实现并保障罪犯享有这项权利就成为法学界、伦理学界、社会学界等多领域需要探讨的问题了。保护罪犯的各项权利对法治国家建设有着十分重要的现实意义,既可体现国家尊重与保障人权,也有利于依法治国理念深入和法制水平提高,罪犯生育权尤其值得我们关注、研究。罪犯生育权的确立,从法制角度讲,不仅有利于对罪犯进行教育改造,实现刑罚执行目的,也有利于保障人权,协调好自由与秩序的关系。本文拟通过对在押罪犯直至死刑犯的生育权研究,探讨中国语境下罪犯生育权理论与实践、确认与保障以及死刑犯生育权的相关问题,寻求罪犯生育权利与监狱既定管理模式的结合点,有目的、有条件、有差别、有选择地对罪犯生育权实施有效保护。全文共分五个部分。第一部分为引言,主要包括论文的研究意义、内容、国内外研究现状、方法思路及内容进行简单概括。第二部分是理论综述和实践探讨,一方面对罪犯生育权等相关概念进行界定,认为罪犯生育权是指所有符合生育相关法律规定的罪犯夫妇和个人享有自由负责地决定其子女数量和间隔以及为此目的而获得信息、教育与方法的基本权利；罪犯夫妇和个人在行使这种权利的责任时,应考虑他们现在子女和未来子女的需要以及他们对社会的责任。对罪犯生育权的理论基础进行梳理和评述,认为罪犯生育权相对于普通生育权的特征是相比于其他普通主体而言的,是由罪犯作为生育权主体的特殊性决定的,有着其重要的法理基础和现实意义。另一方面对中国语境下的罪犯生育权实践进行探讨。认为不论从立法还是司法角度都应该有限制地对罪犯生育权进行保障,这样更有利于立法完善和司法进步。第三部分讨论罪犯生育权之确认与保障。论文在前面分析罪犯生育权必要性的基础上,对如何实现罪犯生育权及其具体实现方式进行剖析。首先对罪犯生育权的范围界定,认为男女罪犯应平等享有生育权,应严格罪犯享有生育权的程序和实体规定。然后提出完善罪犯生育权制度设计方面的原则,即申请原则、分离原则和社会责任原则。再后针对我国罪犯生育权的现状、特点,有针对性地提出了具体的操作措施：第一,根据罪犯服罪境遇保障其生育权；第二,实行监狱特定点会见；第三,将离监探亲作为罪犯服刑的重要奖励；最后,运用人工代孕等辅助生殖技术,满足罪犯的生育欲望。最后,提出了保障罪犯生育权的立法建议,主张修改完善我国涉及现行罪犯生育权的相关法律,使得罪犯生育权在立法上有法可依。第四部分是针对死刑犯的生育权争论问题进行探讨,并提出自我见解, 即不赞同死刑犯享有生育权。第五部分是结论。认为保障罪犯生育权是社会文明和法制进步的必然选择,也是以人为本理念深入人心和贯彻落实科学发展观的现实路径,对推进依法治国的进程,构建有中国特色的社会主义和谐社会有着重要的意义。本文主要以探究罪犯生育权的准予和如何准予为研究点,以实现法律完善为出发点,对当前学界争议点进行评析,得出本文的结论,对罪犯生育权的立法、司法实践起到了积极推动作用,也有利于罪犯基本权利的保障。但由于罪犯生育权问题在目前存在很大争议,在相关的研究上还是比较缺乏基础的,尤其在法理上缺乏有力支撑,参考文献数量有限,这也成为制约本文向更深层次研究,成为了本文的主要不足。
[Abstract]:The right to birth is an important part of human rights. The criminal also has citizenship, and the right to childbearing should be enjoyed. In accordance with the modern spirit of the rule of law, "no prohibition of law is prohibited," the criminal should also enjoy the right to childbirth. According to the principle of human rights protection established in the current constitution, the reproductive rights of the criminals should be affirmed. At the same time, the prisoners' life should be guaranteed. It is of great significance to guarantee the reproductive rights of criminals, meet their instinctive needs, and be beneficial to the realization of basic human rights. It ensures the reproductive rights of prisoners in custody, maintains the stability of their marriage and family, is conducive to social harmony, guarantees the reproductive rights of criminals and helps to solve population problems and improve the reproductive health of prisoners in custody.
In the current law of China, the provision of the criminal's right to birth is still a blank, but it is clear that there are no provisions in the current law to deprive the criminal of the right of childbirth, which is not prohibited by law and that the criminal should enjoy the basic human rights of fertility. But it is difficult to realize the right to birth of a criminal, because this right is needed. Through the person of the criminal, the freedom of the criminal is deprived or restricted by law. In fact, it is difficult to exercise such rights as ordinary citizens. How to realize and guarantee the right of the criminal to enjoy this right has become a problem that needs to be discussed in many fields, such as law, ethics, sociology and other fields. Xiang Quanli has a very important practical significance to the construction of a country under the rule of law. It can not only reflect the state's respect for and guarantee human rights, but also benefit the deepening of the concept of rule of law and the improvement of the level of the legal system. The criminal reproductive rights are especially worthy of our attention. The purpose of the execution of the penalty is to protect the human rights and coordinate the relationship between freedom and order. This paper intends to explore the theory and practice of the criminal reproductive rights in the context of the Chinese context, to discuss the related issues of the criminal reproductive rights in the Chinese context, to confirm and guarantee the rights of the death penalty and to seek the established management of the criminal's reproductive rights and prisons. The joint points of the model are purposeful, conditional and differentiated, and effectively protect the reproductive rights of criminals.
The full text is divided into five parts.
The first part is the introduction, which mainly includes the research significance, content, research situation, methods and contents.
The second part is the theoretical and practical discussion. On the one hand, it defines the concept of criminal reproductive rights and other related concepts. It is considered that the criminal reproductive right refers to the basic right of all the offenders and individuals who are in accordance with the law of childbirth to determine the number and interval of their children freely and responsibly, and to obtain information, education and methods. The criminal couples and individuals should take into account the needs of their children and their future children and their responsibility to the society in the exercise of the responsibilities of their present and future children. The theoretical basis for the reproductive rights of criminals is combed and commented that the reproductive rights of the criminals are compared to the common subjects of ordinary reproductive rights in terms of other common subjects. The special decision of the criminal as the subject of the right of reproductive rights has its important legal basis and practical significance. On the other hand, the practice of the criminal reproductive rights in the Chinese context is discussed. It is believed that the criminal reproductive rights should be guaranteed in terms of legislation and judicature, which is more conducive to legislative improvement and judicial progress.
The third part discusses the confirmation and guarantee of the criminal reproductive rights. On the basis of the analysis of the necessity of the criminal reproductive rights in front of the thesis, the paper analyzes how to realize the reproductive rights of criminals and the specific ways of realizing them. First, the scope of the reproductive rights of criminals is defined, and it is considered that the criminal should enjoy the right to bear the reproductive rights equally, and the procedure for the criminal to enjoy the reproductive rights should be strictly controlled. And then put forward the principles of improving the design of the criminal reproductive rights system, namely the application principle, the principle of separation and the principle of social responsibility. Then, specific operational measures are put forward aiming at the present situation and characteristics of the criminal reproductive rights in our country. First, according to the plight of the criminals to protect their reproductive rights; and second, to carry out the prison special. At the same time, third, it will be an important reward for the prisoners to serve their sentences as prisoners, and finally, the use of artificial surrogate and other assisted reproductive technology to meet the criminal's reproductive desire. Finally, the legislative proposals for the protection of the criminal's reproductive rights are put forward, and the relevant laws concerning the current criminal reproductive rights in China are amended and perfected to make the offender's reproductive rights in legislation. There is a law to follow.
The fourth part is to discuss the debates on reproductive rights of death penalty criminals and put forward their own opinions.
That is, they do not agree with the death penalty for the right to childbirth.
The fifth part is the conclusion. It is believed that the guarantee of the reproductive rights of criminals is the inevitable choice of social civilization and the progress of the legal system. It is also the realistic path of the people oriented concept and the implementation of the Scientific Outlook on Development. It is of great significance to the process of promoting the rule of law and the construction of socialism with Chinese characteristics and a harmonious society.
This article is mainly based on the exploration of the granting and granting of the reproductive rights of criminals and how to perfect the law as a starting point, to analyze the controversial points of the current academic circles, and to draw the conclusion of this article, which has played a positive role in the legislation of the criminal right of childbirth and the judicial practice, but also beneficial to the guarantee of the basic rights of the criminals. At present, the problem is very controversial, and the related research is still relatively lack of foundation, especially the lack of strong support in jurisprudence, the limited number of references, which has also become the restriction of this paper to a deeper level of research, which has become the main deficiency of this article.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D924;D926.7

【参考文献】