我国夫妻权利义务的构建研究

发布时间：2017-12-28 20:19

本文关键词：我国夫妻权利义务的构建研究　出处：《四川师范大学》2016年硕士论文　论文类型：学位论文

【摘要】：随着人们法律思想的转变和权利意识的增强,夫妻之间存在哪些具体的权利义务逐渐被婚姻当事人重视与关注。虽然2001年《婚姻法》修正案以及最高人民法院随后做出的三次司法解释对原有的规定进行了细化和修正,并增设了夫妻权利义务的相关内容,使得夫妻权利义务在我国婚姻法及其相关立法中得到一定程度的确认。但是,我国目前仍没有构建完整、系统地夫妻权利义务体系,例如,夫妻权利义务的内涵和法律责任不明确、夫妻权利义务的规范逻辑结构不完整、夫妻权利义务的内容规定不具体等。针对这些问题,本文即以我国夫妻权利义务的构建为主题,从基础理论入手,通过域外制度的比较分析,以及对我国夫妻权利义务存在的现有问题进行反思,进而探讨夫妻权利义务构建的基础与体系结构的完善。本文分五章来讨论我国夫妻权利义务的构建,内容包括绪论、正文、结语和参考文献。第一章,绪论,阐述选题的研究背景与研究意义。该部分主要通过对夫妻权利义务的立法现状和学术研究现状两方面进行梳理,对其立法现状和主要学者观点进行述评,并从理论、制度和实践层面提出选题的研究意义。第二章,夫妻权利义务的理论认识。该部分主要包括夫妻关系的基本理论、夫妻权利义务的基本认识、夫妻权利义务的类型,首先,在夫妻关系的基本理论中通过对夫妻语义学进行分析并对夫妻概念的界定、夫妻关系的性质进行论证。其次,关于夫妻权利义务的基本认识主要从夫妻权利义务主体的封闭性和开放性、客体的多样性、性质的双重性、可强制执行性和不可强制执行性四个方面进行阐述。最后,夫妻权利义务的类型主要从产生根据、夫妻权利义务的规范形式、夫妻关系的法律性质上三个方面进行分类。第三章,国内外夫妻权利义务制度比较。首先从纵向角度对夫妻权利义务制度的发展史进行考察,发现夫妻权利义务的立法体例经历了曲折的演变过程,它由古代时期的夫权制、近代时期的夫妻别体制,到最终确立了当代夫妻权利义务的平等立法制。其次从横向角度考察近现代域外国家的婚姻法律制度,发现域外两大法系国家的婚姻法律制度对夫妻权利义务的规定较为详细具体,同时,也充分体现了婚姻契约自由的精神。再次从我国早期和近现代夫妻权利义务的相关法律规定进行考察,可得知就具体到各种权利义务的内容上,我国立法规定与国外立法有所不同。最后在比较两大法系国家夫妻权利义务制度的基础上,得出域外国家夫妻权利义务制度对我国夫妻权利义务构建的启示。第四章,我国夫妻权利义务现有问题与反思。本章在对我国现行夫妻权利义务的法律现状进行梳理和分析评价的基础上,认为我国夫妻权利义务现有问题主要表现在立法理念上、规范构成上、规范逻辑结构上等几方面,由此提出应进一步从社会基础、伦理基础、法律基础的角度对我国夫妻权利义务存在的问题进行反思。第五章,我国夫妻权利义务的构建思路与规则设计建议。本章分三个部分,首先,从夫妻权利义务构建的社会基础、婚姻伦理基础、价值基础三方面论证了我国夫妻权利义务的构建基础。其次,从立法选择和构建原则的角度,阐述了我国夫妻权利义务的构建思路。最后,通过提出调整我国婚姻法中夫妻权利义务的立法结构和具体的完善立法建议,来阐述我国夫妻权利义务构建的规制设计建议。结语部分对正文的观点进行总结,并对笔者在写作过程中遇到的瓶颈和亟待进一步研究的内容做简要说明。
[Abstract]:With the change of people's legal thought and the enhancement of the consciousness of rights, what specific rights and obligations between husband and wife have gradually been paid attention to by the marriage parties. Although the 2001 amendments to the "marriage law" and the Supreme People's court then made the three judicial interpretations of the original rules were refined and modified, and the addition of the content related to the rights and obligations of husband and wife, the rights and obligations of husband and wife to confirm to a certain extent in our marriage law and related legislation. However, at present, there is no complete and systematic system of marital rights and obligations in China. For example, the connotation and legal responsibilities of husband and wife is not clear, the normative logical structure of husband and wife is not complete, and the contents of couples' rights and obligations are not specific. To solve these problems, this paper is to construct our marital rights and obligations as the theme, starting from the basic theory, through the comparative analysis of the foreign system, reflection and the existing problems of China \'s rights and obligations of husband and wife, perfect and discuss the rights and obligations of spouses and the foundation for building and architecture. This article is divided into five chapters to discuss the construction of the rights and obligations of husband and wife in our country, including the introduction, the text, the conclusion and the reference. The first chapter, introduction, expounds the research background and significance of the topic. This part mainly combs the two aspects of the legislation status and academic research status of husband and wife rights and obligations, reviews its legislative status and main scholars' viewpoints, and puts forward the research significance of the topic from the theoretical, institutional and practical levels. The second chapter is the theoretical understanding of the rights and obligations of husband and wife. This part mainly includes the relationship of basic theory, the basic understanding of the rights and obligations of spouses, marital rights and obligations of the type, first of all, in the basic theory of the relationship between husband and wife in through the analysis of the semantics and definition of nature, marital relationship between husband and wife couple concept on the card. Secondly, the basic understanding about the rights and obligations of husband and wife is mainly from four aspects: the closeness and openness of the subjects of the rights and obligations of the couple, the diversity of the object, the duality of the nature, the enforceability and the impossibility of enforcement. Finally, the types of rights and obligations of husband and wife are mainly classified from three aspects: the basis of generation, the normative form of husband and wife's rights and obligations, and the legal nature of the relationship between husband and wife. The third chapter is the comparison of the rights and obligations of husband and wife at home and abroad. Firstly, study the history of the rights and obligations of spouses system from the vertical angle, found the legislative style of the rights and obligations of spouses has experienced twists and turns, it is the ancient period of patriarchy, modern couples don't system, to the final establishment of contemporary legislation equality of rights and obligations of husband and wife. Secondly, from a horizontal perspective, we examine the modern European extraterritorial marriage law system. We find that the two legal system countries have more detailed and specific regulations on the rights and obligations of husband and wife, and fully embodies the spirit of freedom of marriage contract. Once again, from the early and modern laws and regulations related to the rights and obligations of couples in China, we can know that the legislative provisions in China are different from those in foreign countries in terms of specific rights and obligations. Finally, on the basis of comparing the system of couple rights and obligations in the two legal system countries, we get the inspiration from the system of rights and obligations of foreign countries to the construction of the rights and obligations of couples in China. The fourth chapter, the existing problems and Reflection on the rights and obligations of husband and wife in our country. This chapter in the legal status of China's current marital rights and obligations of the review and Analysis on the evaluation of our country that the rights and obligations of spouses existing problems mainly in the legislative idea, structure, specification of normative logic structure for several aspects, which should be further from the social basis and ethical basis and legal basis of our rights and obligations of husband and wife problems of reflection. The fifth chapter, the idea of building the right and duty of husband and wife in our country and the suggestion of the rule design. This chapter is divided into three parts. First, we demonstrate the foundation of our rights and obligations in three aspects from the following aspects: the social foundation of marriage rights and obligations, the ethical basis of marriage and the value basis. Secondly, from the perspective of legislative selection and construction principles, the construction of the rights and obligations of husband and wife in China is expounded. Finally, by proposing the legislative structure and specific legislative proposals to adjust the rights and obligations of husband and wife in China's marriage law, we will elaborate the regulatory design suggestions for the construction of the rights and obligations of couples in China. The concluding part summarizes the views of the text, and gives a brief description of the bottlenecks in the writing process and the contents of further research.
【学位授予单位】：四川师范大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9

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