论婚内侵权民事责任制度的构建
发布时间：2018-08-22 20:32
【摘要】：婚姻,是为当时社会制度所确认的、男女两性互为配偶的结合。中国经历了两千多年的封建社会,受“法不入家门”、“家丑不可外扬”、“以和为贵”等传统思想的影响,很多人不愿直面婚内侵权行为,他们往往不愿放弃家庭的和睦而采用诉讼的手段来维护自己的权益,认为婚内侵权行为只是夫妻之间的一种私事,因此在发生婚内侵权行为时侵权人便会顺理成章地逃避法律的制裁。随着我国经济的发展,社会的进步,公民思想有了很大的转变,并没有再像从前一样一味的束缚于旧观念、旧思想传统之中,加上改革开放带来的新事物,让我们有机会接触到西方的文化。这让越来越多的已婚妇女已经意识到自己的权利,从而拿起法律的武器去保护自己的权益。遗憾的是我国现行《婚姻法》在追究婚内侵权行为的民事责任时,存在着严重的缺陷,不能很好的对受害人进行有效的司法救济,也不能起到遏制夫妻侵权行为的目的。学术界对构建婚内侵权民事责任的呼声也越来越高,分歧矛盾也层出不穷。婚内家庭关系是最基本的社会关系,婚姻关系的稳定关系到社会的稳定,婚内侵权行为如果得不到有效地遏制势必会影响到婚姻家庭的稳定,因此构建婚内侵权民事责任制度是我国社会发展和构建和谐社会的内在需求。文章从婚内侵权是否承担民事责任以及构建婚内侵权民事责任的理论依据和现实意义出发,审视了构建婚内侵权民事责任制度所存在的障碍因素,围绕着是否构成婚内侵权以及侵权责任承担问题展开讨论,并提出了排除障碍的相应法律对策,从而肯定了构建婚内侵权民事责任制度的可行性和必然性。本文在写作方法上意在通过以我国现行立法为依据,借鉴世界其他国家和地区的立法、司法经验,以民法、婚姻法、民事权利法律制度等作为切入点对婚内侵权民事责任制度构建进行了深入探讨,以理论和实践相结合为基本研究方法,辅之以历史分析法、目的分析方法等研究方法,把实证和规范相结合。 全文除了引言和结束语之外,共分为三部分： 第一部分婚内侵权的认定。本章主要对婚内侵权的基本问题进行了论述,从婚内侵权的概念入手,阐述了婚内侵权的特点、构成要件和具体表现形式,把一般侵权行为和婚内侵权行为进行了对比分析,并对婚内侵权行为的分类以及几种典型的婚内侵权行为进行了探讨,以便更好地理解什么是婚内侵权行为,使今后对婚内侵权行为作出正确的判断,更好地保障婚姻当事人的权益。 第二部分构建婚内侵权民事责任的可行性和制约因素。本部分结合我国民事责任制度的立法现状对构建婚内侵权民事责任的可行性进行分析,指出我国在构建婚内侵权民事责任制度方面是有一定理论依据和法律依据,从而肯定了构建婚内侵权民事责任制度的可行性。同时指出了在构建过程中学术界和实践中出现的或者可能出现的阻碍婚内侵权民事责任制度构建的障碍因素,并对此进行全面分析。可以看出,构建我国婚内侵权民事责任制度势在必行。 第三部分婚内侵权民事责任制度的构建。本部分首先阐述了构建婚内侵权民事责任制度的意义,从而肯定了婚内侵权民事责任制度在立法中的地位不容忽视,婚内侵权民事责任制度的确立对婚姻家庭立法的完善有着举足轻重的作用。文章最后结合我国实际情况,针对本文第二部分所提到的可能出现的障碍因素提出了有针对性的立法对策,可以有效排除存在的问题,对构建我国婚内侵权民事责任制度起到的积极的作用。
[Abstract]:Marriage was a marriage affirmed by the social system at that time, in which men and women were married to each other. After more than 2000 years of feudal society in China, many people were reluctant to face up to marital infringement because of the influence of traditional ideas such as "law does not enter the family", "family ugliness should not be publicized", "harmony is the most precious" and so on. With the development of our economy and the progress of our society, the citizen's thought has changed greatly, and has not changed as before. Restricted by old ideas, old ideological traditions, and new things brought about by reform and opening up, we have the opportunity to come into contact with Western culture. This has made more and more married women aware of their rights and thus take up the legal weapon to protect their rights and interests. There are serious defects in the civil liability of acts, which can not provide effective judicial relief to the victims, nor can it serve the purpose of curbing marital infringement. The stability of marital relationship is related to the stability of society. If the marital infringement can not be effectively curbed, it will affect the stability of marriage and family. Therefore, the construction of civil liability system for marital infringement is the internal demand of social development and the construction of a harmonious society. Starting from the theoretical basis and practical significance of civil liability for rights, this paper examines the obstacles in the construction of civil liability for marital infringement, discusses whether it constitutes marital infringement and the problem of liability for infringement, and puts forward corresponding legal countermeasures to remove the obstacles, thus affirming the establishment of civil liability for marital infringement. Feasibility and inevitability. This paper intends to make a thorough discussion on the construction of civil liability system for marital infringement by taking the current legislation of our country as the basis, drawing on the legislative and judicial experience of other countries and regions in the world, taking civil law, marriage law, civil rights legal system as the breakthrough point, and combining theory with practice as the basis. Basic research methods, supplemented by historical analysis, purpose analysis and other research methods, combine empirical and normative methods.
Apart from the introduction and concluding remarks, the article is divided into three parts.
The first part is the determination of marital infringement. This chapter mainly discusses the basic problems of marital infringement. Starting from the concept of marital infringement, it expounds the characteristics, constitutive requirements and specific manifestations of marital infringement. It makes a comparative analysis of general infringement and marital infringement, and classifies marital infringement and several kinds of infringement. Typical marital infringement is discussed in order to better understand what is marital infringement, so as to make a correct judgment on marital infringement in the future and better protect the rights and interests of marital parties.
The second part is about the feasibility and restrictive factors of constructing civil liability for infringement in marriage.This part analyzes the feasibility of constructing civil liability for infringement in marriage in light of the legislative status quo of civil liability system in China,and points out that there are certain theoretical and legal basis for constructing civil liability system for infringement in marriage in China. At the same time, it points out the obstacles that appear in the academic circles and practice or may appear in the process of building the civil liability system of infringement in marriage, and makes a comprehensive analysis of them. It can be seen that it is imperative to establish the civil liability system of infringement in marriage in China.
The third part is the construction of the civil liability system of infringement in marriage.This part firstly expounds the significance of constructing the civil liability system of infringement in marriage,thus affirming that the status of civil liability system of infringement in marriage can not be ignored in legislation,and the establishment of civil liability system of infringement in marriage plays an important role in the perfection of marriage and family legislation. In the end, according to the actual situation of our country, the article puts forward some legislative countermeasures against the possible obstacles mentioned in the second part of this article, which can effectively eliminate the existing problems and play a positive role in constructing the civil liability system of marital infringement.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.9
本文编号：2198217
[Abstract]:Marriage was a marriage affirmed by the social system at that time, in which men and women were married to each other. After more than 2000 years of feudal society in China, many people were reluctant to face up to marital infringement because of the influence of traditional ideas such as "law does not enter the family", "family ugliness should not be publicized", "harmony is the most precious" and so on. With the development of our economy and the progress of our society, the citizen's thought has changed greatly, and has not changed as before. Restricted by old ideas, old ideological traditions, and new things brought about by reform and opening up, we have the opportunity to come into contact with Western culture. This has made more and more married women aware of their rights and thus take up the legal weapon to protect their rights and interests. There are serious defects in the civil liability of acts, which can not provide effective judicial relief to the victims, nor can it serve the purpose of curbing marital infringement. The stability of marital relationship is related to the stability of society. If the marital infringement can not be effectively curbed, it will affect the stability of marriage and family. Therefore, the construction of civil liability system for marital infringement is the internal demand of social development and the construction of a harmonious society. Starting from the theoretical basis and practical significance of civil liability for rights, this paper examines the obstacles in the construction of civil liability for marital infringement, discusses whether it constitutes marital infringement and the problem of liability for infringement, and puts forward corresponding legal countermeasures to remove the obstacles, thus affirming the establishment of civil liability for marital infringement. Feasibility and inevitability. This paper intends to make a thorough discussion on the construction of civil liability system for marital infringement by taking the current legislation of our country as the basis, drawing on the legislative and judicial experience of other countries and regions in the world, taking civil law, marriage law, civil rights legal system as the breakthrough point, and combining theory with practice as the basis. Basic research methods, supplemented by historical analysis, purpose analysis and other research methods, combine empirical and normative methods.
Apart from the introduction and concluding remarks, the article is divided into three parts.
The first part is the determination of marital infringement. This chapter mainly discusses the basic problems of marital infringement. Starting from the concept of marital infringement, it expounds the characteristics, constitutive requirements and specific manifestations of marital infringement. It makes a comparative analysis of general infringement and marital infringement, and classifies marital infringement and several kinds of infringement. Typical marital infringement is discussed in order to better understand what is marital infringement, so as to make a correct judgment on marital infringement in the future and better protect the rights and interests of marital parties.
The second part is about the feasibility and restrictive factors of constructing civil liability for infringement in marriage.This part analyzes the feasibility of constructing civil liability for infringement in marriage in light of the legislative status quo of civil liability system in China,and points out that there are certain theoretical and legal basis for constructing civil liability system for infringement in marriage in China. At the same time, it points out the obstacles that appear in the academic circles and practice or may appear in the process of building the civil liability system of infringement in marriage, and makes a comprehensive analysis of them. It can be seen that it is imperative to establish the civil liability system of infringement in marriage in China.
The third part is the construction of the civil liability system of infringement in marriage.This part firstly expounds the significance of constructing the civil liability system of infringement in marriage,thus affirming that the status of civil liability system of infringement in marriage can not be ignored in legislation,and the establishment of civil liability system of infringement in marriage plays an important role in the perfection of marriage and family legislation. In the end, according to the actual situation of our country, the article puts forward some legislative countermeasures against the possible obstacles mentioned in the second part of this article, which can effectively eliminate the existing problems and play a positive role in constructing the civil liability system of marital infringement.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.9
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