有配偶者赠与婚外情人财物之法律规制研究

发布时间：2018-10-25 17:58

【摘要】：近年来,随着经济全球化的发展以及改革开放的深入,我国经济取得了飞速发展,中国的综合国力不断增强,人民的生活水平不断提高。社会的不断发展,国外文化的影响,我国的婚姻关系观念受到了冲击,并发生了变化。由于受到各种因素的影响,有配偶者赠与婚外情人财物的纠纷近来越来越成为普遍的社会现象,“婚外情”、“二奶”“小三”已经成为社会的热点,这对我国的婚姻制度带来了严重的影响,不利于我国婚姻家庭的稳定,也不利于社会的稳定。实践中,由于法律规制在此类问题上存在漏洞,多数法官将民法基本原则——公序良俗原则,作为认定的依据,出现了同案不同判的现象。这样是片面的,也是不利于公正、公平的。而且在理论界和社会上,存在较大的争议,大家的观点各不相同。为此,最高院在婚姻法解释三征求意见稿第二条对此作了相关规定,但是最终因为有配偶者赠与婚外情人财物的复杂性,而且此条文规定的不完善,最终没有通过。为了保护公民的合法权益,维护婚姻家庭关系的稳定,维持社会的稳定,尽快制定相关的立法规制,确定统一的标准,显得格外重要。本文从案例入手,采用比较分析、理论分析、实证分析的方法,在明确有配偶者赠与婚外情人财物的性质、原因基础上,分析有配偶者赠与婚外情人财物的正当性与不正当性。通过对国外立法的总结,借鉴先进的国外立法规制,结合我国的立法现状和司法实践,阐述完善我国有配偶者赠与婚外情人财物的立法规制的必要性和可行性,最后根据我国的实际情况,提出对我国有配偶者赠与婚外情人财物法律规制的建议。本文除了引言和结语外,共分为三个部分。第一部分,阐述了有配偶者赠与婚外情人财物纠纷的概述。对有配偶者赠与外情人财物的纠纷概况进行了阐述,并对其进行界定。同时,列举了有配偶者赠与婚外情人财物的种类和方式。然后对其原因和性质进行分析,最后对有配偶者赠与婚外情人财物的正当性和不正当性进行分析,最终提出自己的观点。第二部分,我国现行法律对有配偶者赠与婚外情人财物行为的法律规制。首先,分析了我国现行法律对此问题的规制。其次,指出了我国现行法律对此类问题规制的不足之处。再次,列举了大陆法系和英美法系国家对此类问题的规制。结合我国实际情况,借鉴两大法系国家的法律规制。第三部分,笔者在前两部分的基础之上,对完善我国对有配偶者赠与婚外情人财物行为的规制提出建议。从立法、司法及其他方面入手,分别提出不同的规制建议,完善我国的立法,为我国有配偶者赠与婚外情人财物纠纷的解决尽一份绵薄之力。
[Abstract]:In recent years, with the development of economic globalization and the deepening of reform and opening up, China's economy has made rapid development, China's comprehensive national strength has been increasing, and the living standards of the people have been constantly improved. With the development of society and the influence of foreign culture, the concept of marriage relation in our country has been impacted and changed. Due to the influence of various factors, the dispute over the property of a spouse who gives property to an adulterer has recently become a common social phenomenon. "extramarital affairs" and "second wives" and "small three" have become hot spots in society. This has brought serious influence to the marriage system of our country, which is not conducive to the stability of marriage and family in our country, and also to the stability of society. In practice, because there are loopholes in this kind of problems in the legal regulation, most judges regard the basic principle of civil law, the principle of public order and good custom, as the basis of the determination, and there is a phenomenon of different judgments in the same case. This is one-sided and is not conducive to justice and fairness. And in theory and society, there is a greater controversy, everyone's views are different. Therefore, the Supreme Court in the third draft of the interpretation of the Marriage Law of the second draft of the relevant provisions on this, but eventually because of the spouse of the complexity of the property of the person who gave the affair, and the provisions of this article is not perfect, and finally failed to pass. In order to protect the legitimate rights and interests of citizens, maintain the stability of marriage and family relations, maintain social stability, as soon as possible to formulate relevant legislative regulations, to determine a unified standard, it is particularly important. This article starts with the case, uses the method of comparative analysis, theoretical analysis and empirical analysis, on the basis of defining the nature and reason of the property of the person who has the spouse giving away the affairs person, analyzes the legitimacy and the illegality of the property of the person who has the spouse giving away the property of the person who has the extramarital affair. Through summing up the foreign legislation, drawing lessons from the advanced foreign legislative regulations, combining the current legislative situation and the judicial practice of our country, this paper expounds the necessity and feasibility of perfecting the legislative regulation of the property of the spouse and the extramarital affairs person in our country. Finally, according to the actual situation of our country, this paper puts forward some suggestions on the legal regulation of the property of the spouse in our country. In addition to the introduction and conclusion, this article is divided into three parts. In the first part, the author expounds the outline of the property dispute between the spouse and the extramarital affair. This paper expounds and defines the dispute about the property of the lover who has a spouse. At the same time, it lists the types and ways of the spouse's gift of the extramarital affairs person's property. Then it analyzes the reason and nature, and finally analyzes the legitimacy and illegality of the property of the spouse who gives the extramarital affairs person, and finally puts forward his own viewpoint. In the second part, the present law of our country regulates the property behavior of the spouse. First of all, it analyzes the regulation of the current law of our country. Secondly, it points out the deficiency of the current law of our country on the regulation of this kind of problems. Third, the civil law system and the common law system countries to regulate such issues. Combined with the actual situation of our country, draw lessons from the legal regulation of the two legal system countries. In the third part, based on the first two parts, the author puts forward some suggestions to perfect the regulation of the property behavior of spouses. From the legislative, judicial and other aspects, respectively, put forward different regulatory proposals, improve the legislation of our country, for the spouses of the property disputes of extramarital affairs to solve a small contribution.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923

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