论夫妻平等的法律保护

发布时间：2018-03-01 07:40

本文关键词： 夫妻平等法律保护婚姻法　出处：《长春工业大学》2010年硕士论文　论文类型：学位论文

【摘要】：本文从夫妻平等的内容和价值出发,对夫妻平等的立法现状和发展趋势进行了深入细致的研究,并在此基础上提出完善我国夫妻平等立法的建议。共分为五个部分：第一部分,概述夫妻平等的基本理论。在我国宪法男女平等原则的基础上提出了婚姻法中夫妻平等的概念,婚姻法中的夫妻平等,是指夫妻双方在婚姻生活中处有平等的法律地位、享有平等的权利并承担平等的义务。论述了夫妻平等的内容和价值。第二部分,总结当代婚姻法中夫妻平等立法的发展趋势。回溯历史,婚姻中的夫妻关系经历了由夫妻不平等向夫妻平等演变的发展过程,当代婚姻法废除了以往那些体现夫妻不平等关系的条款,增补了夫妻关系平等的具体内容,将“夫妻平等”明确规定于法律之中。同时,当代婚姻法更加追求对夫妻平等地位的实质保护,在设计具体制度时,首先考虑的因素是能否确保夫妻平等的真正实现。第三部分,考察域外国家夫妻平等立法的立法模式和具体内容。在以法国、德国、瑞士为代表的大陆法系和以英国、美国为代表的英美法系之间,从夫妻人身权和夫妻财产制两个方面,探讨各国夫妻平等立法的特点。通过比较分析可见,域外国家夫妻平等立法的先进经验及不足之处可以为完善我国夫妻平等立法发挥很好的启示作用。第四部分,我国的夫妻平等立法。阐述了我国夫妻平等立法的立法现状,梳理了现阶段仍然存在的主要问题：立法结构不合理、缺少有关夫妻同居义务和夫妻日常家事代理权的规定、关于夫妻婚姻住所决定权和夫妻生育权的规定不够明确、缺少夫妻财产关系的通则性规定、约定和法定财产制的具体内容有待补充等。第五部分,完善我国的夫妻平等立法。在分析我国夫妻平等立法缺陷的基础之上,结合当代夫妻平等立法的发展趋势,借鉴域外国家夫妻平等立法的经验教训,提出了在完善我国夫妻平等立法过程中应遵循的基本原则：“私事原则”、意思自治原则、区别对待原则和均衡原则,从而针对现存问题提出相应的对策建议。首先,调整我国夫妻平等立法的立法结构,将夫妻关系集中、单独地规定到一章之中,凸显婚姻法对夫妻关系的重视。其次,在夫妻人身权方面,增补夫妻同居义务和夫妻日常家事代理权,修改夫妻婚姻住所决定权和夫妻生育权。第三,在夫妻财产制方面,增设通则性规定,增补约定财产制的要件和内容,补充和完善通常法定财产制,增补非常法定财产制。第四,提出设置家庭事务管理机构这样一个职能部门,管理夫妻双方在婚姻生活中出现的矛盾和问题,监督和保障我国夫妻平等的实现程度。
[Abstract]:Starting from the content and value of the equality of husband and wife, this paper makes a thorough and detailed study on the present situation and development trend of the legislation on the equality of husband and wife, and on this basis puts forward some suggestions to perfect the legislation of equality of husband and wife in China. It is divided into five parts:. The first part summarizes the basic theory of equality of husband and wife. On the basis of the principle of equality between men and women in the Constitution of our country, it puts forward the concept of equality of husband and wife in the Marriage Law, the equality of husband and wife in the Marriage Law, It refers to the equal legal status, equal rights and equal obligations of husband and wife in their marital life, and discusses the content and value of the equality of husband and wife. The second part summarizes the development trend of the legislation of equality between husband and wife in the contemporary marriage law. Looking back on history, the relationship between husband and wife in marriage has gone through the development process from the inequality of husband and wife to the equality of husband and wife. The contemporary marriage law repeals the previous provisions that reflect the unequal relationship between husband and wife, adds to the specific content of equality between husband and wife, and explicitly stipulates "equality of husband and wife" in the law. At the same time, The contemporary marriage law pursues the substantive protection of the equal status of husband and wife. When designing the specific system, the first consideration is whether to ensure the real realization of the equality between husband and wife. The third part examines the legislative model and specific content of the legislation on equality between husband and wife in foreign countries, between the civil law system represented by France, Germany and Switzerland, and the common law system represented by the United Kingdom and the United States. From the two aspects of husband and wife's personal rights and marital property system, this paper discusses the characteristics of the legislation on equality of husband and wife in various countries. The advanced experience and deficiency of the legislation on equality of husband and wife in foreign countries can play a very important role in perfecting the legislation of equality of husband and wife in our country. Part 4th, the legislation of equality of husband and wife in our country, expounds the present situation of legislation of equality of husband and wife, combs the main problems that still exist at the present stage: the legislation structure is unreasonable, The lack of provisions on the obligation of cohabitation and the power of daily family affairs agency, the lack of clear provisions on the right to decide the matrimonial domicile and the right of husband and wife to have children, and the lack of a general rule on the property relationship between husband and wife, Agreement and the specific content of legal property system to be supplemented. Part 5th, consummates the husband and wife equality legislation in our country. On the basis of analyzing our country husband and wife equality legislation flaw, unifies the contemporary husband and wife equality legislation development tendency, draws lessons from the extraterritorial country husband and wife equality legislation experience, This paper puts forward the basic principles that should be followed in the process of perfecting the legislation of equality of husband and wife in our country: the principle of "private affairs", the principle of autonomy of will, the principle of differential treatment and the principle of balance, so as to put forward the corresponding countermeasures and suggestions in view of the existing problems. Adjusting the legislative structure of our country's legislation on equality of husband and wife, centralizing the relationship between husband and wife into a single chapter, highlighting the importance attached by the Marriage Law to the relationship between husband and wife. Secondly, in terms of the personal rights of husband and wife, To supplement the obligation of cohabitation and the power of daily household agency, to modify the right to decide the marital domicile and the right of husband and wife to have children. Third, to add general provisions to the system of marital property, and to supplement the elements and contents of the agreed property system. To supplement and improve the usual statutory property system, to supplement the extraordinary legal property system. 4th, to propose the establishment of a family affairs management organ as a functional department to manage the contradictions and problems in marital life between husband and wife. To supervise and guarantee the realization of equality between husband and wife in our country.
【学位授予单位】：长春工业大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.9

【共引文献】