论夫妻忠诚协议的司法认知

发布时间：2018-10-31 19:38

【摘要】：在社会的不断变迁中,婚姻关系从过去的经济共同体、基于传宗接代的动因和目的向为了满足夫妻双方感情的要求转变,任何婚婚姻中都不希望有不稳定的因素存在,为了维系婚姻的正常秩序,夫妻双方往往通过签订夫妻忠诚协议来限制破坏婚姻稳定因素的发生,同时设立相应的违约责任,以求达到时刻提醒夫妻双方哪些行为是破坏婚姻和谐,对夫妻间不忠诚的行为产生一定的预防和威慑作用。《4婚姻法》是民法的一部分,秉承贯彻“私法自治”的原则,我国相应法律法规并未明确禁止夫妻双方就忠诚问题进行平等约定,双方只要是在平等自愿的原则下表达自身真实意愿,既不侵害第三方的利益,也有利于规范社会风气。夫妻忠诚协议是在公民自由权利和法律秩序间取得良好的平衡,为夫妻忠诚义务展开提供更好的法律指引、法律保护,故夫妻忠诚协议的出现是符合社会发展的需要。本文从司法审判一线的角度出发,探寻夫妻忠诚协议在司法实践中出现的认知困惑,分析夫妻忠诚协议出现的社会发展的原因及现实社会的需求,以及社会公众对夫妻忠诚协议所产生的认识误区。同时收集我国现有审判案例,并进行分析归纳,提炼出现有审判实践对夫妻忠诚协议的司法认知度,以及在审判实践中遇到的待解决的法律问题,并结合国内外先进经验,在立足于我国现有国情的基础上,探索出一系列针对当前司法实践中迫切需要解决的问题应对之策,例如从司法确认的要件、举证责任的完善、违约责任的限定以及免责事由、公证制度的健全、法律制度的完善及法官自由裁量权的完善等方面分项进行详细分析,为司法实践领域填补相应的法律适用空白,力求为司法审判提供较为现实可行的参考。
[Abstract]:In the continuous changes of society, marriage relations have changed from the economic community in the past, based on the motives and purposes of successive generations, to meet the needs of the feelings of both husband and wife. In any marriage, there is no hope that there will be any unstable factors in marriage. In order to maintain the normal order of the marriage, the husband and wife often sign the agreement of the husband and wife loyalty to limit the occurrence of the destabilizing factors of the marriage, and establish the corresponding liability for breach of contract. In order to always remind the husband and wife which behavior is to destroy the marriage harmony, to produce certain prevention and deterrent effect to the disloyal behavior between husband and wife. < 4 Marriage Law > is part of the civil law, and adheres to the principle of "autonomy of private law". China's corresponding laws and regulations do not explicitly prohibit husband and wife from making equal agreement on loyalty. As long as both sides express their true will under the principle of equality and willingness, they will neither infringe the interests of third parties, but also help to regulate the social atmosphere. The agreement of husband and wife loyalty is to obtain a good balance between civil freedom rights and legal order, to provide better legal guidance and legal protection for husband and wife loyalty obligations, so the emergence of husband and wife loyalty agreement is in line with the needs of social development. From the point of view of judicial trial, this paper explores the cognitive confusion of marital loyalty agreement in judicial practice, and analyzes the reasons for the social development of marital loyalty agreement and the needs of the real society. And the misunderstanding of the public about the agreement of husband and wife loyalty. At the same time, we collect the existing trial cases in our country, analyze and sum up, refine the judicial recognition of the agreement of loyalty between husband and wife in trial practice, and the legal problems that need to be solved in the trial practice, and combine the advanced experience at home and abroad. Based on the current situation of our country, this paper explores a series of solutions to the urgent problems in the current judicial practice, such as the elements of judicial confirmation, the perfection of the burden of proof, the limitation of the liability for breach of contract and the reasons of exemption. The perfection of notarization system, the perfection of legal system and the consummation of the judge's discretion are analyzed in detail to fill the relevant blank of law application in the judicial practice field, and to provide practical and feasible reference for the judicial trial.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9

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