论夫妻生育权冲突及解决途径

发布时间：2018-03-19 21:29

本文选题：生育权　切入点：夫妻生育权冲突　出处：《河北大学》2017年硕士论文　论文类型：学位论文

【摘要】：基于男女双方生理结构的不同以及生育行为相互配合的生物学基础,夫妻之间不可避免的会产生生育权冲突,如何妥善解决夫妻之间的生育权冲突不仅需要完善的理论知识作为参考,更需要相关的法律制度作为指导。然而在我国关于生育权的相关理论知识未成系统,生育权冲突的界定存在或多或少的分歧,在司法实践中也就没有一个完整统一的法律依据,从而出现同案不同判的情况。因而为促进夫妻生育权冲突的解决,本文从理论法学和司法实践的角度出发进行撰写。论文介绍了生育权的历史沿革并综合多家言论概括出了生育权概念,明确了生育权是一项基本人权,是一项宪法权利,属于私权的范畴,重点分析了生育权是一项人格权;在明确生育权性质的前提下进一步探讨了夫妻生育权所具有的身份属性、依附性和不对等性,并归纳了夫妻生育权的具体内容即夫妻生育决定权、夫妻生育知情权、夫妻生育保障权。为了使得夫妻生育权冲突与其他关于夫妻生育权的纠纷区分开来,本文对夫妻生育权冲突进行了界定,剖析了夫妻生育权冲突的实质即利益冲突与价值冲突,进而将夫妻生育权冲突与生育侵权问题进行了对比,明确生育权冲突是合法权利的行使的结果,而侵犯生育权是侵权行为;在明确夫妻生育权冲突的基础上剖析了引起夫妻生育权的主观原因和客观原因,进而结合典型案例分析了怀孕前的生育权冲突和怀孕后的生育权冲突类型,以及特殊类型中的由遗腹子引发的法理与情理的冲突和配偶一方为死刑犯引发的夫妻生育权冲突问题。为了找出我国关于夫妻生育权冲突解决的问题,并从国外立法和司法实践中寻求借鉴,笔者分析了我国关于夫妻生育权冲突的立法现状,以及司法实践中存在的问题,通过介绍国外英美法系与大陆法系在解决夫妻生育权冲突上的司法判例以及法律规定,从中分析出对我国有借鉴意义的地方,包括英国规定孕前胚胎归夫妻双方所有,协商一致才可植入子宫、怀孕后赋予妻子堕胎决定权以及墨西哥的生育协议制度。在夫妻生育权冲突的解决方面笔者首先提出解决冲突应当遵循的平等原则、善意行使原则及利益衡量原则;其次在确立生育协议制度上提出了自己的构想,包括生育协议的缔结,生育协议的内容和效力,违反生育协议应承担的责任这三个方面;最后提出了具体的立法建议与司法建议。
[Abstract]:Based on the differences in physiological structure between men and women and the biological basis for the coordination of reproductive behavior, couples inevitably have a conflict of reproductive rights. How to properly resolve the conflict between husband and wife needs not only perfect theoretical knowledge as reference, but also relevant legal system as guidance. However, in our country, the relevant theoretical knowledge on reproductive rights is not systematic. There are more or less differences in the definition of the conflict of reproductive right, and there is no complete and unified legal basis in judicial practice, which leads to different judgments in the same case. Therefore, in order to promote the resolution of the conflict of reproductive rights of husband and wife, This paper is written from the angle of theoretical jurisprudence and judicial practice. The paper introduces the historical evolution of reproductive right and summarizes the concept of reproductive right by synthesizing many opinions, and clarifies that reproductive right is a basic human right and a constitutional right. Belonging to the category of private rights, this paper focuses on the analysis of reproductive right as a personal right, and further discusses the identity, dependence and non-reciprocity of husband and wife's reproductive right on the premise of defining the nature of reproductive right. And summarized the specific content of husband and wife reproductive rights, namely, the right to decide the husband and wife's fertility, the right to know about the couple's birth, the right of the husband and wife's reproductive security. In order to make the conflict between the couple's reproductive right and other disputes about the couple's reproductive right, This paper defines the conflict of husband and wife's reproductive right, analyzes the essence of the conflict of husband and wife's reproductive right, namely the conflict of interest and value, and then compares the conflict of husband and wife's reproductive right with the issue of reproductive infringement. It is clear that the conflict of reproductive rights is the result of the exercise of legal rights, and the violation of reproductive rights is an act of infringement, and on the basis of clarifying the conflict of marital reproductive rights, this paper analyzes the subjective and objective reasons that cause couples' reproductive rights. Then, combining with typical cases, this paper analyzes the types of conflict of reproductive right before pregnancy and after pregnancy. As well as the conflicts between legal theory and reason caused by the bereavement in the special types, and the conflicts of the couple's reproductive rights caused by the death penalty by one of the spouses, in order to find out the problem of resolving the conflict of the husband and wife's reproductive rights in our country, And from the foreign legislation and judicial practice to seek reference, the author analyzes the current situation of legislation on the right of husband and wife reproductive rights conflict, as well as the problems in judicial practice. By introducing the judicial precedents and legal provisions of the Anglo-American law system and the continental law system in resolving the conflict between husband and wife's reproductive rights, the author analyzes the points of reference to our country, including the British stipulation that the pre-pregnancy embryo is owned by the husband and wife. It is only by consensus that the uterus can be implanted. After pregnancy, the wife is given the right to decide on abortion and Mexico's fertility agreement system. In the aspect of resolving the conflict of couple's reproductive rights, the author first puts forward the principle of equality that should be followed in resolving the conflict. Secondly, the author puts forward his own conception in establishing the birth agreement system, including the conclusion of the birth agreement, the content and effect of the birth agreement, and the responsibility of violating the birth agreement. Finally, specific legislative and judicial suggestions are put forward.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9

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