论夫妻生育权的体系构建及其法律保护

发布时间：2018-03-17 15:36

本文选题：夫妻生育权　切入点：体系构建　出处：《兰州大学》2007年硕士论文　论文类型：学位论文

【摘要】： 生育是人类延续和亲属关系产生的基础，无论法律是否明文规定，生育权在人们的心目中，向来被视为人的基本权利。但是当前侵害生育权的现象时有发生，突出的有医疗事故等侵害生育权的行为、夫妻一方与他人通奸姘居私生子女、非经配偶同意人工生育等。同时由于近些年我国各地(例如四川、南京、北京等地)陆续受理了多例涉及生育权的案件，引起了人们对生育权的广泛关注。在我国法学研究领域，对于生育权的性质是属于身份权还是人格权(即生育权是由已婚夫妇才享有还是所有公民都享有)没有定论，学者们争议的焦点之一就在于公民个人的生育权是否应当得到法律的保护。所以，无论对于生育权的性质持何种观点的学者对于已婚夫妇享有生育权是没有争议的。笔者在本文中只讨论夫妻间的生育权，称为夫妻生育权。目前，我国宪法和计划生育法是从国策和行政管理的角度，对公民生育权的保护和行使进行调整。但从民事的角度，对侵害公民生育权的行为进行调整的法律规范还不多，特别是在夫妻之间由于行使生育权而产生的冲突或者第三人侵害夫妻生育权的救济措施方面，几乎还是空白。主要规定夫妻权利义务的《婚姻法》也仅仅只有“夫妻双方都有实行计划生育的义务”这种原则性的规定。学者们对于生育权的问题也很少问津。鉴于此笔者认为我国应构建完善的夫妻生育权体系，同时在对夫妻生育权的保护方面，我国法律应依照国家计划生育法的相关规定，保障公民生育的基本权利，在民事立法中确立对侵害夫妻生育权的行为进行处理的原则以及相关的具体措施。本文采用历史分析法、案例分析法、中外比较分析法等多种研究方法，对夫妻生育权的体系构建及其法律保护进行详细的分析和论述并提出自己的设想和建议。本文总共分三个部分。第一部分结合国际社会对生育权的定义以及我国相关的法律规定，界定了夫妻生育权的概念。第二部分分析了构建夫妻生育权法律体系的依据，并且提出了构建夫妻生育权体系的设想。第三部分详细阐述了对夫妻生育权进行法律保护的措施，也提出了自己的建议。构建夫妻生育权的法律体系并且完善对其进行法律保护的措施，既是婚姻关系中法定义务的内在要求，，也是婚姻关系民法属性的直接反映，同时又是保护婚姻当事人合法权益的需要。笔者相信，随着我国法律制度的进一步完善，夫妻生育的权利会得到更好的保护。
[Abstract]:Fertility is the basis for the continuation of human beings and the generation of kinship, regardless of whether or not the law expressly stipulates that reproductive rights have always been regarded as the basic rights of human beings in people's minds, but the phenomenon of infringing on reproductive rights occurs from time to time. Prominent violations of reproductive rights, such as medical malpractice, adultery by one spouse and adultery with another, illegitimate children, artificial childbearing without the consent of the spouse, etc., also due to recent years in various parts of China (such as Sichuan, Nanjing, etc.). Many cases involving reproductive rights have been dealt with in succession, which has aroused widespread concern about reproductive rights. In the field of legal research of our country, there is no conclusion as to whether the nature of reproductive right belongs to identity right or personality right (that is, whether the reproductive right is enjoyed by married couples or all citizens). One of the controversies among scholars is whether individual citizens' reproductive rights should be protected by law. No matter what kind of view on the nature of reproductive rights, there is no dispute that married couples enjoy reproductive rights. In this paper, the author only discusses the reproductive rights between husband and wife, which is called husband and wife reproductive right. At present, the constitution and family planning law of our country adjust the protection and exercise of citizens' reproductive rights from the angle of state policy and administration. However, from the civil point of view, there are few legal norms for the adjustment of acts that infringe upon citizens' reproductive rights. Especially with regard to the conflict between husband and wife as a result of the exercise of their reproductive rights or the relief measures by a third party that infringe upon the husband and wife's reproductive rights, Almost still blank. The "Marriage Law", which mainly stipulates the rights and obligations of husband and wife, is only a principled stipulation that "both husband and wife have the obligation to carry out family planning". Scholars also seldom ask questions about reproductive rights. In view of this, the author thinks that China should construct a perfect system of husband and wife's reproductive rights, At the same time, with regard to the protection of couples' reproductive rights, our laws should protect the basic rights of citizens to have children in accordance with the relevant provisions of the National Family Planning Law. In civil legislation, the principles of dealing with the violation of husband and wife's reproductive rights and the relevant specific measures are established. This paper adopts several research methods, such as historical analysis, case analysis, comparative analysis between China and foreign countries, and so on. The system construction and legal protection of husband and wife's reproductive right are analyzed and discussed in detail, and their own ideas and suggestions are put forward. This paper is divided into three parts. The first part defines the concept of husband and wife's reproductive right in combination with the definition of reproductive rights in the international community and the relevant legal provisions of our country. The second part analyzes the basis of constructing the legal system of husband and wife's reproductive rights. The third part elaborates the legal protection measures of husband and wife's reproductive rights, and puts forward their own suggestions. Constructing the legal system of husband and wife's reproductive right and perfecting the measures to protect it are not only the inherent requirements of the legal obligation in the marriage relationship, but also the direct reflection of the civil law attribute of the marriage relationship. At the same time, it is necessary to protect the legitimate rights and interests of the marriage parties. The author believes that with the further improvement of the legal system of our country, the right of husband and wife to have children will be better protected.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D923

【引证文献】