论我国夫妻配偶权制度的构建

发布时间：2018-04-30 14:35

本文选题：配偶权制度 + 构建　；参考：《中央民族大学》2011年硕士论文

【摘要】：众所周知,家庭是社会的细胞,夫妻是构成家庭最基本的要素,它是社会中最基本的伦理关系,配偶权是调整夫妻关系的权利,因此对调整夫妻关系的配偶权的研究,不仅关系到夫妻双方的利益,而且也关系到整个家庭的利益,进而影响到整个社会的和谐和稳定。配偶权是一种身份权是由早期的夫权演变而来,但是随着历史的发展配偶权有了新的含义,它是建立在男女平等的基础上的,摆脱了封建传统思想对女性的束缚的权利,它赋予了女性同男性一样在婚姻中平等的权利。从配偶权的内部来讲夫妻双方互相享有配偶权,一方享有权利另一方就要承担相应的义务,是夫妻之间权利和义务的综合体；从配偶权的外部来说夫妻是一个整体,任何人都负有不得侵犯的义务。国外许多国家在本国的立法中已经明确了配偶权的概念,并且相关的制度也比较完善,但是在我国关于是否要设立配偶权还存有很大的争议。因此,本文主要从婚姻法的基本理论和现行法律法规出发,对配偶权的相关内容进行探讨,并进一步探析对配偶权的法律保护问题。本文包括导论、正文、结语三部分,其中正文分为三章。导论主要阐述了本文的选题背景及研究意义、研究相关动态、研究思路及方法。第一章配偶权制度概述。从配偶权的内涵与配偶权制度的历史沿革入手,简要介绍学术界有关配偶权概念的不同观点,进一步分析配偶权的法律性质,并对配偶权各项具体权利逐一进行分析介绍,同时对配偶权行使的基本原则略加陈述,并表明了笔者对配偶权制度的价值立场。第二章配偶权制度设立的必要性和可行性。认为配偶权的设立有利于维护婚姻的根本宗旨——权利和义务的一致性；有利于维护平等、和睦、文明的社会主义婚姻家庭关系；有利于保护妇女合法权利。同时通过对国外部分国家和我国港、澳、台地区关于配偶权的相关立法的阐述及评析,从比较法的角度观察、研讨,借鉴与学习外国法律与判例之合理内核,做到“洋为中用”。第三章构建我国配偶权制度的思考。作为全文的核心,该部分从我国有关配偶权的现状及缺陷入手,着重从民法典亲属篇应当建立配偶权制度、我国法定配偶权的主要内容、建立侵害配偶权的救济制度三方面进行分析探讨,在配偶权应否法定等学界分歧的问题上提出作者不成熟之观点,同时主张建立婚内过错赔偿等配偶权救济制度。结语对论文写作进行简要回顾,对配偶权制度的发展前景进行展望。
[Abstract]:As we all know, the family is the cell of the society, and husband and wife are the most basic elements of the family. It is the most basic ethical relationship in the society, and the right of spouse is the right to adjust the relationship between husband and wife. Therefore, the study on the right of spouse to adjust the relationship between husband and wife. It concerns not only the interests of both husband and wife, but also the interests of the whole family, thus affecting the harmony and stability of the whole society. The right of spouse is a kind of right of identity evolved from the early right of husband, but with the development of history, the right of spouse has a new meaning, which is based on equality between men and women, and gets rid of the right of bondage of the feudal traditional thought to women. It gives women equal rights in marriage with men. From the internal perspective of the spouse right, the husband and wife enjoy the spouse right to each other. One party enjoys the right and the other party must bear the corresponding obligations, which is the combination of the rights and obligations between the husband and the wife. From the external perspective of the spouse right, the husband and wife are a whole. Everyone has an inviolable obligation. Many foreign countries have defined the concept of the right of spouse in their own legislation, and the relevant system is relatively perfect, but there is still a lot of controversy about whether to set up the right of spouse in our country. Therefore, this paper mainly from the basic theory of marriage law and current laws and regulations, to explore the relevant content of spouse rights, and further explore the legal protection of spouse rights. This paper includes three parts: introduction, text and conclusion, in which the text is divided into three chapters. The introduction mainly describes the background and significance of this paper, research trends, research ideas and methods. Chapter one summarizes the system of spouse right. Starting with the connotation of the spouse right and the historical evolution of the spouse right system, this paper briefly introduces the different viewpoints of the academic circles on the concept of the spouse right, further analyzes the legal nature of the spouse right, and analyzes and introduces each specific right of the spouse right one by one. At the same time, the basic principle of the exercise of the right of spouse is briefly stated, and the author's position on the value of the system of the right of spouse is indicated. The second chapter is the necessity and feasibility of the establishment of spouse right system. It is considered that the establishment of the right of spouse is conducive to the maintenance of the basic tenet of marriage, the consistency of rights and obligations, the maintenance of equal, harmonious and civilized socialist marriage and family relations, and the protection of women's legal rights. At the same time, through the elaboration and analysis of the relevant legislation on spouse right in some foreign countries and in Hong Kong, Macao and Taiwan of China, from the perspective of comparative law, we can observe, discuss, learn from and learn from the reasonable core of foreign laws and precedents. Be sure to "make foreign things work". The third chapter constructs our country spouse right system ponder. As the core of the full text, this part starts with the present situation and defects of the right of spouse in China, emphasizes on the establishment of the system of the right of spouse in the relative part of the Civil Code, and the main contents of the legal right of spouse in our country. This paper analyzes and discusses the three aspects of the remedy system for infringement of spouse right, puts forward the author's immature viewpoint on whether the spouse right should be legalized or not, and advocates the establishment of the relief system of spouse right such as compensation for marital fault. The conclusion gives a brief review of the writing of the thesis and prospects for the development of the right of spouse system.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.9

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