夫妻生育权研究
发布时间：2018-08-12 18:32
【摘要】：随着社会的发展,生育权从最初的一项自然权利逐步转变为公民的一项法定权利,法律对生育权的保护得到日益加强。但是,近些年来生育权纠纷的案件层出不穷,特别是夫妻间的生育权冲突和对夫妻生育权侵害而产生的诉讼越来越多。而在我国,理论界对生育权的研究分歧一直比较大,关于生育权的立法也相对滞后,特别是夫妻生育权的民事立法几乎是空白,存在比较突出的法律漏洞。这直接导致夫妻生育权不能得到有效的法律保障,在司法实践中因夫妻间的生育权冲突和侵害夫妻生育权而引起的诉讼往往出现判罚不一、法官为难、当事人双方不服的情况,从而不利于纠纷的解决、权利的保护、侵害的弥补和法律公平正义的伸张。随着人们法律知识的普遍提升,权利意识的不断增强,夫妻的生育权问题日益为人们所关注,究竟什么是夫妻生育权?其内容是什么?夫妻间生育权纠纷的情形有哪些?如何处理夫妻间的生育权纠纷?如何认定和处理第三人侵害夫妻生育权?如何保障特殊情况下的夫妻生育权?等等一系列问题亟待解决。对夫妻生育权的立法保护,不仅关系到每对夫妻的应有权利,而且关系到婚姻、家庭的和谐和稳固,这对于国家、社会、家庭和个人都是非常必要的。作为一种私权利,法律尤其应该从私法的角度予以充分的保障,随着我国民主、法治的充分发展,夫妻生育权的民事立法问题日益提到议事日程上来。对此,本文从三个具有代表性的夫妻生育权纠纷的案例入手,提出相关问题从而引入对夫妻生育权的若干问题分析思考。首先,紧紧抓住生育权的基本概念,对夫妻生育权的含义、特征、法律定位和内容做出自己的认识。其次,有针对性地对夫妻间生育权纠纷的情形有哪些?如何处理夫妻间的生育权纠纷?如何认定和处理第三人侵害夫妻生育权?如何保障特殊情况下的夫妻生育权?等问题进行深刻的剖析,以寻求处理问题的办法。最后,根据自己对以上问题的研究,就夫妻生育权的民事立法提出自己的一些设想或建议,以期待对夫妻生育权的合法保护和正确行使有一定的意义和帮助。 全文除前言、结语外共分六个部分加以论述: 第一部分是问题的提出。本部分由三个典型的案例引出夫妻生育权在学界和司法实务中存在的分歧和处理难点。主要是究竟什么是夫妻生育权?其内容是什么?夫妻间生育权纠纷的情形有哪些?如何处理夫妻间的生育权纠纷?如何认定和处理第三人侵害夫妻生育权?如何保障特殊情况下的夫妻生育权? 第二部分是夫妻生育权的内容分析。廓清生育权的基本概念,在此基础上进一步阐明什么是夫妻生育权,介绍夫妻生育权的显著特征和基本内容,对其法律性质进行准确的定位。 第三部分是夫妻间生育权纠纷的认定与处理。一方面,归纳和分析了夫妻间生育权纠纷的若干情形,区分不同类型的夫妻间生育权纠纷侵权与否;另一方面,提出解决不同性质的夫妻间生育权纠纷的具体办法。 第四部分是第三人侵害夫妻生育权的认定与处理。第三人是指夫妻之外的任何单位和个人,因此,第三人侵害夫妻生育权的情况比较繁杂。本文试以医疗单位侵害为主、其他单位和个人侵害为次来阐明第三人侵害夫妻生育权可能会承担民事责任、行政责任和刑事责任,以及都应该对夫妻双方承担精神损害赔偿。 第五部分是特殊情况下的夫妻生育权问题。这类夫妻的生育权问题不在于纠纷与侵害,往往在于自身权利的实现比较困难。我们认为,这些夫妻既然处于特殊情况,法律应该允许其通过特殊的途径和形式来实现他们的生育权。 第六部分是夫妻生育权的民事立法建议。根据前面的分析,有针对性地提出夫妻生育权的民事立法建议,一是把夫妻生育权作为民事基本权利予以确立,二是在婚姻法中以明确条款的形式规制夫妻的生育问题,三是明确侵害夫妻生育权的法律责任,四是反对生育协议合法化
[Abstract]:With the development of society, the reproductive right has gradually changed from a natural right to a legal right of citizens, and the protection of the reproductive right by law has been strengthened day by day. In our country, the theoretical circles have been divergent in the study of the right to child-bearing, and the legislation of the right to child-bearing is relatively lagging behind, especially the civil legislation of the couple's right to child-bearing is almost blank, and there are more prominent legal loopholes. This directly leads to the couple's right to child-bearing can not be effectively guaranteed by law, because of the couple's birth in judicial practice. Conflict of rights and infringement of husband and wife's reproductive rights often lead to different sentences, judges are in a dilemma, the parties are not convinced, which is not conducive to the settlement of disputes, the protection of rights, the remedy of infringement and the extension of legal fairness and justice. More and more people pay attention to the problem, what is the couple's reproductive right? What is its content? What are the situations of the couple's reproductive right disputes? How to deal with the couple's reproductive right disputes? How to identify and deal with the third party infringement on the couple's reproductive right? How to protect the couple's reproductive right under special circumstances? A series of problems need to be solved urgently. Legislative protection of husband and wife's reproductive rights is not only related to each couple's due rights, but also related to marriage, family harmony and stability, which is very necessary for the state, society, family and individual. As a private right, the law should be fully protected from the perspective of private law, with the full development of democracy and the rule of law in China. This article starts with three representative cases of couple's reproductive rights disputes, puts forward relevant problems and introduces some problems of couple's reproductive rights. Firstly, we should firmly grasp the basic concept of reproductive rights and the meaning of couple's reproductive rights. Secondly, what are the situations of disputes between husband and wife? How to deal with disputes between husband and wife? How to identify and deal with the third party infringement of husband and wife's reproductive rights? How to protect the husband and wife's reproductive rights under special circumstances? And other issues are deeply analyzed in order to seek solutions. Finally, according to my own research on the above issues, I put forward some ideas or suggestions on the civil legislation of the couple's reproductive rights, in order to look forward to the legitimate protection and correct exercise of the couple's reproductive rights have certain significance and help.
In addition to the preface and conclusion, the paper is divided into six parts:
The first part is the question raised. This part draws out the differences and difficulties in dealing with the couple's reproductive rights in the academic circles and judicial practice from three typical cases. What is the couple's reproductive rights? What is its content? What are the situations of the couple's reproductive rights disputes? How to deal with the couple's reproductive rights disputes? How to identify them? How to protect the birth right of couples under the special circumstances?
The second part is the content analysis of husband and wife's reproductive rights. It clarifies the basic concepts of the reproductive rights, further clarifies what is the husband and wife's reproductive rights, introduces the prominent features and basic contents of the husband and wife's reproductive rights, and accurately locates their legal nature.
The third part is the identification and settlement of the disputes over the right of reproduction between husband and wife.
The fourth part is the identification and treatment of the third party's infringement of the couple's reproductive rights. The third party refers to any unit or individual other than the couple. Therefore, the infringement of the couple's reproductive rights by the third party is more complicated. This paper tries to explain the possibility of the third party's infringement of the couple's reproductive rights. Civil liability, administrative liability and criminal liability, as well as compensation for spiritual damage to both husband and wife should be borne.
The fifth part is the issue of couples'reproductive rights under special circumstances.The issue of couples' reproductive rights does not lie in disputes and infringement, but often lies in the difficulty of realizing their own rights.We think that since these couples are in special circumstances, the law should allow them to realize their reproductive rights through special ways and forms.
The sixth part is the civil legislative proposals of the couple's reproductive rights. According to the previous analysis, this paper puts forward some suggestions on the civil legislation of the couple's reproductive rights. Firstly, the couple's reproductive rights should be established as the civil basic rights, secondly, the couple's reproductive rights should be regulated in the form of explicit provisions in the marriage law, and thirdly, the couple's reproductive rights should be The four is to oppose the legalization of the birth agreement.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923
本文编号：2179930
[Abstract]:With the development of society, the reproductive right has gradually changed from a natural right to a legal right of citizens, and the protection of the reproductive right by law has been strengthened day by day. In our country, the theoretical circles have been divergent in the study of the right to child-bearing, and the legislation of the right to child-bearing is relatively lagging behind, especially the civil legislation of the couple's right to child-bearing is almost blank, and there are more prominent legal loopholes. This directly leads to the couple's right to child-bearing can not be effectively guaranteed by law, because of the couple's birth in judicial practice. Conflict of rights and infringement of husband and wife's reproductive rights often lead to different sentences, judges are in a dilemma, the parties are not convinced, which is not conducive to the settlement of disputes, the protection of rights, the remedy of infringement and the extension of legal fairness and justice. More and more people pay attention to the problem, what is the couple's reproductive right? What is its content? What are the situations of the couple's reproductive right disputes? How to deal with the couple's reproductive right disputes? How to identify and deal with the third party infringement on the couple's reproductive right? How to protect the couple's reproductive right under special circumstances? A series of problems need to be solved urgently. Legislative protection of husband and wife's reproductive rights is not only related to each couple's due rights, but also related to marriage, family harmony and stability, which is very necessary for the state, society, family and individual. As a private right, the law should be fully protected from the perspective of private law, with the full development of democracy and the rule of law in China. This article starts with three representative cases of couple's reproductive rights disputes, puts forward relevant problems and introduces some problems of couple's reproductive rights. Firstly, we should firmly grasp the basic concept of reproductive rights and the meaning of couple's reproductive rights. Secondly, what are the situations of disputes between husband and wife? How to deal with disputes between husband and wife? How to identify and deal with the third party infringement of husband and wife's reproductive rights? How to protect the husband and wife's reproductive rights under special circumstances? And other issues are deeply analyzed in order to seek solutions. Finally, according to my own research on the above issues, I put forward some ideas or suggestions on the civil legislation of the couple's reproductive rights, in order to look forward to the legitimate protection and correct exercise of the couple's reproductive rights have certain significance and help.
In addition to the preface and conclusion, the paper is divided into six parts:
The first part is the question raised. This part draws out the differences and difficulties in dealing with the couple's reproductive rights in the academic circles and judicial practice from three typical cases. What is the couple's reproductive rights? What is its content? What are the situations of the couple's reproductive rights disputes? How to deal with the couple's reproductive rights disputes? How to identify them? How to protect the birth right of couples under the special circumstances?
The second part is the content analysis of husband and wife's reproductive rights. It clarifies the basic concepts of the reproductive rights, further clarifies what is the husband and wife's reproductive rights, introduces the prominent features and basic contents of the husband and wife's reproductive rights, and accurately locates their legal nature.
The third part is the identification and settlement of the disputes over the right of reproduction between husband and wife.
The fourth part is the identification and treatment of the third party's infringement of the couple's reproductive rights. The third party refers to any unit or individual other than the couple. Therefore, the infringement of the couple's reproductive rights by the third party is more complicated. This paper tries to explain the possibility of the third party's infringement of the couple's reproductive rights. Civil liability, administrative liability and criminal liability, as well as compensation for spiritual damage to both husband and wife should be borne.
The fifth part is the issue of couples'reproductive rights under special circumstances.The issue of couples' reproductive rights does not lie in disputes and infringement, but often lies in the difficulty of realizing their own rights.We think that since these couples are in special circumstances, the law should allow them to realize their reproductive rights through special ways and forms.
The sixth part is the civil legislative proposals of the couple's reproductive rights. According to the previous analysis, this paper puts forward some suggestions on the civil legislation of the couple's reproductive rights. Firstly, the couple's reproductive rights should be established as the civil basic rights, secondly, the couple's reproductive rights should be regulated in the form of explicit provisions in the marriage law, and thirdly, the couple's reproductive rights should be The four is to oppose the legalization of the birth agreement.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923
【引证文献】
相关期刊论文 前1条
1 袁春;;我国生育权问题研究综述[J];法制博览(中旬刊);2012年05期
相关硕士学位论文 前2条
1 崔粉亚;拉萨移居汉族候鸟式生育模式研究[D];西南民族大学;2012年
2 吴平;我国生育权法律制度研究[D];上海社会科学院;2012年
，本文编号：2179930
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