论夫妻生育权冲突及其解决

发布时间：2018-06-25 21:35

本文选题：生育权 + 夫妻生育权　；参考：《吉林大学》2013年硕士论文

【摘要】：生育是人类繁衍生息的基本方式，是人类社会新陈代谢的基本手段甚至可以说是唯一方法。人类通过劳动创造了多彩的世界，而生育则创造了人类自身，没有生育就没有人类的肉体和灵魂，也就谈不上认识和改造世界了。与所有生命体一样，人类的是生育也是一个古老但从不衰败的话题。从人类起源早期的生命体开始，这些生命体就开始不断进行生老病死，只是那时不叫生育，而是称为繁殖，生育有生有育，生育是人类为了将自身繁衍教育后代的行为与其他生命体单纯本能地生产后代区别开来而使用的，但是它本质上仍然是或者说需要“制造”出后代，这也是生物学上考察的生育内容。自古以来生育需要两性的配合，，人与人交往会形成社会关系，因此，生育决不可能仅仅停留在生物学上，生育与社会学具有天然本质的联系。法学作为人文社会科学的一个重要方面，对于生育的研究也就显得自然而然，这种研究更是随着经济社会的发展显得越来越重要。法学是关于权利义务的科学，法学上研究生育也着重研究生育权利义务关系。在人类的发展史上，生育和其他法学研究对象一样经历了漫长的演变过程。在原始社会及更早，生育更多的是作为一种动物本能而存在；进入阶级社会后，随着社会经济发展客观上需要更多的劳动人口，生育成为人们的义务特别是女性的义务；及至近现代，人们权利意识的高涨以及人口过剩带来的压力，特别是妇女解放运动的兴起使得生育逐步从义务阶段过渡到权利阶段。目前，法学上，生育作为一种权利基本上已经成为了一种共识，然而对于什么是生育权、生育权的内容、主体以及性质却是存在多种见解和争论，可谓仁者见仁，智者见智。对于这些问题的回答直接关系到夫妻生育权冲突的存在与否。笔者认为，生育权是主体依照法律的规定在生育事宜上所享有的权利总和，这种主体是没有条件限制的普通公民，该权利在性质上属于民事权利中的人格权。无论在理论上还是实践中，夫妻生育权冲突都是一种客观存在的社会现象，它是指由于双方生育利益的不一致，一方因无法得到对方的配合而导致生育权无法实现的情形。夫妻生育权冲突作为一种客观的社会现象其表现形式是多种多样的，既有夫妻一方有生育的意愿而另一方不同意，也存在双方都有生育的意愿但是客观条件不允许，比如患有不孕不育病症或者不适合生育的疾病。从夫妻生育权冲突产生的原因来说可以分为主观意愿和客观原因。要能够很好地解决夫妻生育权冲突，不仅需要对这一类冲突的表现和原因进行探讨，还必须深入思考这一冲突类型的本质，夫妻生育权冲突的本质是个人利益之间的冲突和个人利益与社会利益冲突的杂糅，只有抓住了冲突的本质对症下药，分清和平衡这些利益冲突才有可能顺利解决矛盾。夫妻生育权的冲突不是现在才出现的，在我国以往的司法实践中就碰见过这类案例，有些案例看似并非夫妻生育权冲突但是在实际处理过程中往往会涉及这方面的内容。同样，不仅我国存在这样的冲突，但凡承认生育是公民的权利的国家都面临这样的司法难题，我国以及外国处理这方面案件的司法实践和法律规定可以为解决这类案件提供有益借鉴及思考。另外，学者们见仁见智的观点非常值得去认识，去思考，去借鉴，这些观点在笔者看来，有些是真知灼见，有些则是有待商榷甚至违背现代法治理念的。笔者认为，由于社会情况的复杂性，夫妻生育权冲突多种多样，仅凭有限的法律规则难于有效地解决夫妻生育权冲突，应当在遵循一定的原则和路径下，通过提倡善意行使权利、处理好积极自由和消极自由的关系、充分考量权利价值位阶、正确处理好个人自由和社会公共利益的关系等多方因素加以衡量最终作出符合现代法治理念，能够切实保障公民民事权利的解决方案。
[Abstract]:Birth is the basic way of human reproduction, the basic means of the metabolism of human society and even the only way. Human beings create a colorful world through labor, and fertility creates human beings themselves, without childbearing, there is no human body and soul, nor can we talk about the world and all life bodies. Similarly, human reproduction is an old but never declining topic.
From the beginning of the early life of human origin, these life bodies began to continue to live and die, but they were not called reproduction, but were called reproduction, birth and birth, and fertility was used by human beings to differentiate their offspring from other living bodies by instinctively born after the postnatal generation. It is still or necessary to "produce" the offspring, which is also a biological study of fertility. Since ancient times, fertility needs the coordination of the sexes, and the relationship between people and people will form a social relationship. Therefore, fertility can not only stay in biology, and there is a natural link between fertility and sociology. Law as a humanities and social science. In one important aspect, research on fertility is also natural. This research is becoming more and more important with the development of economy and society.
Law is the science of rights and obligations. In law, the study of fertility also focuses on the relationship between the rights and obligations of birth. In the history of human development, birth and other subjects of law have experienced a long process of evolution. In the primitive society and earlier, more birth is an animal instinct; after entering the class society, it follows. The development of social and economic development objectively needs more working population, and fertility becomes the obligation of people, especially women. In modern times, the rise of people's consciousness of rights and the pressure of overpopulation, especially the rise of women's liberation movement, make the birth of birth gradually transition from the stage of justice to the stage of rights.
At present, in law, birth as a kind of right has basically become a common understanding. However, there are many opinions and arguments about what is the right of fertility, the subject and nature of the right of reproduction. The answer to these questions is directly related to the existence of the conflict between husband and wife. It is believed that the right to birth is the sum of rights enjoyed by the subject in accordance with the provisions of the law. This subject is an ordinary citizen without restriction. The right is the right of personality in the nature of civil rights. Both in theory and in practice, the bursting of the husband and wife is an objective social phenomenon, which means that the right of birth is an objective social phenomenon. Because the interests of the two sides are inconsistent, one party can not achieve the right to childbirth because it can not get the cooperation of the other party.
As an objective social phenomenon, as an objective social phenomenon, the conflict of reproductive rights of husband and wife is a variety of forms, not only the willingness of one side of the husband and wife but also the other side, but also the willingness of both parties to have fertility but the objective conditions are not allowed, such as the infertile disease or the disease that is not suitable for birth. It can be divided into subjective and objective reasons.
In order to solve the conflict between husband and wife, it is necessary not only to discuss the manifestations and causes of this kind of conflict, but also to think deeply about the nature of the type of conflict. The essence of the conflict of husband and wife's reproductive rights is the conflict between individual interests and the hybridity of individual interests and social interests, and only the nature of the conflict is seized. It is possible to resolve conflicts smoothly by sorting out and balancing these conflicts of interest.
The conflict of the right of husband and wife is not present. In our previous judicial practice, this kind of case has been met. Some cases seem to be not the conflict between husband and wife but are often involved in the actual process. In the same way, it is not only a conflict in our country, but also the country that acknowledges the rights of the citizens. All the families are faced with such judicial difficulties. The judicial practice and legal provisions of dealing with this case in our country and foreign countries can provide useful reference and thought for solving this kind of case. In addition, the scholars are very worthy of understanding, thinking, and drawing lessons from the views of the scholars. The author believes that, because of the complexity of the social situation, the conflict between husband and wife's reproductive rights is varied and it is difficult to effectively solve the conflict between couples' reproductive rights by limited legal rules. We should follow certain principles and paths to deal with positive freedom and negativity through the promotion of good faith in the exercise of rights. The relationship of freedom, the full consideration of the level of the value of rights, the correct handling of the relationship between individual freedom and the social and public interests, and so on, can be used to measure the solution of the civil rights of the citizens in accordance with the modern concept of the rule of law.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923

【参考文献】