论未成年子女的姓名权

发布时间：2018-09-13 15:20

【摘要】：婚姻家庭问题是与每个人切身利益密切相关的问题,未成年子女的姓名权作为其中的一角,也不可避免地成为学界关注的焦点。未成年子女姓名权问题不仅涉及到儿童的社会认同,更关乎家庭和睦和幸福。因为,姓名是每个人主体存在的标志,是获得社会认同的标志,还承载了复杂的利益关系。在子女姓氏问题上,父母双方可能各持己见,一旦双方就子女的姓名选择或变更不能达成一致意见,很容易诱发家庭矛盾,影响家庭的和谐稳定。我国现行法律对姓名权的规定,主要表现在《婚姻法》和《民法通则》。此项原则性是一般规定,人们对此的认为往往难以达成统一观点。在儿童姓氏及名字的选择和更改上,许多人认为,法律并未做出禁止性规定,“法无禁止即可行”,他人无权干涉子女的姓名权,现实生活中争议不断。最新立法解释的出台,使得子女可选择“第三人姓氏”合法化,但又引发公众对“正当理由”的猜疑;目前,相关法律规定对姓名的选择上缺乏规范,法律法规难以有效整合;离婚率增加,离异家庭父母一方擅自给儿童改姓的纠纷时有发生。本文除序论和结语,主要从四个方面论证儿童姓名权问题。首先,文章从民法姓名权的属性及内涵出发,论述儿童姓名权法理基础,具体从姓名决定、使用和变更行使谈起,这是儿童独立人格权,父母对儿童该权利的代为行使,表现了父母监护的一角;其次,参考域外法对儿童姓名权的相关规定;第三部分结合以往司法判例,讨论关于孩子姓名权的点点争议,比如细化“第三人姓氏”的问题、离异家庭未成年子女改姓的问题、儿童改名的规范性问题;最后,针对司法实践中的若干案例,提出完善未成年子女姓名权的建议,如将最新立法解释关于“其他正当理由”的兜底条款具体化,增强实践可操作性,使得“第三姓”的选择更加明确化;正视子女作为自身独立权利个体的地位,更多关注子女的利益最大化实现;重视取名的规范性等。
[Abstract]:The problem of marriage and family is closely related to the vital interests of everyone, and the right to name of minor children, as one of them, inevitably becomes the focus of academic attention. The right to name of minor children is not only related to children's social identity, but also to family harmony and happiness. Because the name is the symbol of the existence of everyone, the symbol of social identity, and the bearing of complex interests. On the issue of children's family name, parents may hold their own opinions. Once the two sides can not agree on the choice or change of the children's name, it is easy to induce family conflicts and affect the harmony and stability of the family. The current law of our country provides for the right of name mainly in Marriage Law and General principles of Civil Law. This principle is a general rule, to which it is often difficult to reach a unified view. In the choice and change of children's surname and first name, many people think that the law does not make the prohibition, "the law can do without prohibition", others have no right to interfere with the child's right to a name, and there are many disputes in real life. The introduction of the latest legislative interpretation has made it possible for children to choose a "third person's surname", but it has also aroused public suspicion of "just reasons"; at present, the relevant laws and regulations lack of norms on the choice of names, and it is difficult to effectively integrate laws and regulations; Divorce rates have increased, and disputes over unauthorized surnames of children by one parent of a divorced family have occurred from time to time. In this paper, the preface and conclusion, mainly from four aspects of children's right to name. First of all, starting from the attribute and connotation of the right of name in civil law, this paper discusses the legal basis of the right of name of children, and discusses the legal basis of the right of name, which is the independent personality right of children and the representative exercise of the right of parents to children. Showing a corner of parental custody; secondly, referring to the relevant provisions of extraterritorial laws on children's right to a name; part three, combining with past judicial precedents, to discuss points and disputes about the right of a child to a name, such as refining the issue of "third person's surname," The problem of changing the surname of minor children from divorced families and the normative problem of children's renaming. Finally, in view of some cases in judicial practice, the author puts forward some suggestions on how to perfect the right to name of minor children. Such as the embodiment of the latest legislative interpretation of the "other legitimate reasons" clause, the enhancement of practical maneuverability, the clearer choice of the "third surname", and the recognition of the status of the child as an individual with independent rights of his or her own. Pay more attention to the maximization of children's interests; pay attention to the standardization of naming and so on.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923

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