配偶权及其侵权行为研究
发布时间：2018-12-14 06:42
【摘要】：配偶权在我国是一项颇有争议的权利。我国立法上并未明确规定配偶权及其保护制度，但在司法实践中，侵害配偶权问题却日益突出，尤其是以第三者插足他人家庭及与配偶一方通奸案件表现得尤为明显。值得欣喜的是，2001年新修订《婚姻法》加大了对配偶权的保护力度，配偶权问题在我国日益受到重视。 笔者在消化吸收学者们诸多研究成果的基础上，综合运用婚姻法、侵权行为法等法律知识，试图对配偶权及其侵权行为作一些理论探讨，提出自己的一些不成熟的见解，以图对我国的配偶权及其侵权问题有一个较完整的把握，为完善我国的民事立法提供一种思路。 全文共分三部分，总计约36000字。 第一部分 引论：(民事)权利与侵权 笔者介绍了民法上权利的概念、本质及其分类。配偶权作为一项重要的民事权利，属于身份权、非财产权。权利形成后，权利的享有者必然要去行使权利，以实现自己的权利。在任何一个法律关系中，权利与义务是相互对立、相互依存并相互联系的。违反限制的权利行使即构成权利滥用，而对于他人来说则构成侵权；拒绝履行义务同样可能构成对他人权利实现的妨碍，从而构成侵权。配偶权是特定主体即配偶之间的一项重要的民事权利，具体表现为一系列配偶间的权利与义务。配偶双方都有追求实现自己配偶权的权利，而义务主体则负有不得侵害配偶权的义务。 第二部分 配偶权论 一、配偶的概念和性质 配偶最终反映的是合法婚姻关系男女两性亲属身份的对应称谓，夫妻互为配偶。我国民事立法确认配偶为亲属之一种，与血亲、姻亲共同构成亲属的三大种类。 二、配偶权的概念 (一)配偶权的演变 (二)配偶权的概念 笔者在总结各种观点的基础上指出：其一，配偶权的存在以合法有效的夫妻关系为基础；其二，配偶权属于身份权；其三，配偶权专属于夫妻；其四，配偶权表现为夫妻相互间的权利义务。笔者对配偶权定义如下：配偶权是指，，基于合法婚姻关系成立的夫妻之间互享权利，互负义务的基本身份权。 三、配偶权的特征:第一，权利主体的特定性;第二，权利客体的利 益性;第三，权利义务的协同性。 四、配偶权的性质笔者认为，对于配偶相互之间来说，配偶权表现 出相对权的性质，对于第三人来说，配偶权具有绝对权的性质，配偶权是 绝对权与相对权的统一;同时笔者主张配偶权兼有支配权与请求权的性质. 五、配偶权的内容在研究各种学说的墓础上，笔者指出配偶权主要 由以下具体内容构成:(1)夫妻姓氏权;(2)住所决定权;(3)同居权; (4)贞操忠实权;(6)日常家事代理权;(7)相互扶助权。 第三部分配偶权俊权行为论 一、问题的提出:侵害配偶权的行为属于侵权行为，应受侵权行为法 调整 二、侵害配偶权民事责任的构成要件在分析一般侵权行为民事责任 构成要件的基础上，笔者认为侵害配偶权的民事责任同样由四个要件构成， 即:违法行为、损害事实、因果关系和主观过错。 三、配偶权侵权行为类型研究 根据侵权行为法理论，结合配偶权的自身特点，笔者认为侵害配偶权 的侵权行为按照不同的标准，可做如下分类:(1)内部侵权行为和外部侵 权行为;(2)积极的侵权行为和消极的侵权行为;(3)单独侵权行为和共 同侵权行为;(4)直接侵权行为和间接侵权行为.进一步，笔者结合配偶 权的各项具体内容予以重点剖析侵害配偶权侵权行为的各种表现形式。 四、在侵害配偶权的典型行为之外，还对一些行为是否侵害了配偶权 存有争议，如家庭暴力问题、“婚内强奸问题”、卖淫缥娟问题、网络虚拟 婚恋问题，笔者就此提出了自己的见解. 五、对受侵害配偶权的救济笔者针对各类侵害配偶权的侵权行为， 提出了各自适用的救济手段，并对我国现行法律对受侵害配偶权救济的规 定进行了评析。 六、完善我国配偶权法律保护的制度设计 笔者主张:在婚姻家庭法中明确配偶权的具体内容;在侵权行为法中 明确将配偶权纳入保护范围.确立婚姻住所由夫妻平等协商制度;确立日 常家事代理权制度;确立别居制度。明确配偶权的民法保护，尤其是第三 人民事责任的承担。明确侵害配偶权的民事责任承担方式。
[Abstract]:Spouse rights are a controversial right in our country. The right of the spouse and its protection system are not defined in the legislation of our country, but in the practice of the judicial practice, the problem of the infringement of the right of the spouse is becoming more and more prominent, especially in the case of the third party's family and the case of adultery with the spouse. It is gratifying to note that the new amendments to the Marriage Act in 2001 have increased the protection of the right to a spouse, and that the issue of the right to a spouse is becoming more and more important in my country. Based on the research results of the scholars and the scholars, the author makes a comprehensive use of the legal knowledge such as the marriage law and the tort law, and tries to make some theoretical research on the right of the spouse and the tort, and put forward his own. Some unripe views, in order to have a more complete understanding of our country's right of spousal and its infringement, in order to improve our country's civil rights The legislation provides a way of thinking. The full text is divided into three parts, a total of about 36000 Word. Part One: (Civil The author of the right and the tort introduces the right in the civil law The concept, nature and its classification. The right of the spouse, as an important civil right, belongs to the right of identity. Non-property right. After the right is formed, the enjoyment of the right is bound to exercise the right to realize its own in any of that legal relationship, the rights and obligations are mutually opposite, interdependent and interrelated. the exercise of the right to a violation of the restriction constitutes an abuse of the right and, for others, if that right of the spouse is a specific one, the right of the spouse is specific. One of the important civil rights between the spouses is the rights and obligations of a series of spouses. Spouses Both sides have the pursuit of the realization The right of the right of the spouse, and the body of the obligation has the obligation not to violate the right of the spouse. The second part of the right of the spouse First, the spouse's concept and the nature of the spouse ultimately reflect the relationship between women and men in a legitimate marriage The right to the identity of a gender. The husband and wife shall be referred to as each other. 2. The concept of the spouse's right to be a family. (I) The evolution of the right of the spouse (2) the concept of the right of the spouse On the basis of summarizing the various points of view, it is pointed out that the existence of the right of the spouse is based on the legal and effective relationship of the husband and wife; the other, the right of the spouse belongs to the right of identity. Third, the right of the spouse is a husband and wife; and the right of the spouse is the right of the husband and wife. The author's definition of the right of the spouse is as follows: The right of spouse refers to the right and mutual negative obligation of the husband and wife established on the basis of the relationship of the legitimate marriage. the right to basic identity. sign: First, the subject of the right Qualitative; second, the benefit of the object of the right the nature of the rights and obligations of the third and the third parties. in that light of the author's view, the right of the spouse to the right of the spouse is relative to each other The nature of the right, for the third, the right to a spouse has an absolute The nature of the right to a spouse absolute right At the same time, the author argues that the right of the spouse has the property of the right of support and the right of claim. V. The content of the right of the spouse in the study of the tomb of various theories, the author It is pointed out that the right of the spouse is the main It is composed of the following specific contents: (1) the family name of the husband and wife (2) the right to residence; (2) the right of residence; (3) the right to cohabitation; (4) The fidelity of the chastity (6) the right of daily family agent; and (7) the right to mutual support. The third part of the right of the right of the spouse to the right of the right of the right of the right of the right, the question is raised: the infringement of the spouse the act of the right in that case of a violation, it shall be subject to the regulation of the act of tort. II. Analysis of the Elements of the Civil Liability for Infringement of the Right of Spouse civil liability of general tort On the basis of the elements, the author thinks that the civil responsibility of the right of the spouse Any act is also composed of four elements, namely, the illegal act, the damage Real, causality and subjective fault. 3. The type of the right of the spouse right is based on the tort. The theory of law, in combination with the characteristics of the right of the spouse, the author The violation of the right to a spouse, in accordance with different criteria, may The following classification is made: (1) internal and external rights violations; (2) Aggressive invasion a right act and a negative tort; (3) a single invasion. (4) The right to conduct and the co-operation; and (4) direct violations and Indirect torts. Further, the author Specific provisions in connection with the right to a spouse The content is focused on the infringement of the right of the spouse. various forms of expression. IV. In the case of an infringement of a spouse In addition to the typical behavior of the right, do some of the actions
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D913
本文编号：2378118
[Abstract]:Spouse rights are a controversial right in our country. The right of the spouse and its protection system are not defined in the legislation of our country, but in the practice of the judicial practice, the problem of the infringement of the right of the spouse is becoming more and more prominent, especially in the case of the third party's family and the case of adultery with the spouse. It is gratifying to note that the new amendments to the Marriage Act in 2001 have increased the protection of the right to a spouse, and that the issue of the right to a spouse is becoming more and more important in my country. Based on the research results of the scholars and the scholars, the author makes a comprehensive use of the legal knowledge such as the marriage law and the tort law, and tries to make some theoretical research on the right of the spouse and the tort, and put forward his own. Some unripe views, in order to have a more complete understanding of our country's right of spousal and its infringement, in order to improve our country's civil rights The legislation provides a way of thinking. The full text is divided into three parts, a total of about 36000 Word. Part One: (Civil The author of the right and the tort introduces the right in the civil law The concept, nature and its classification. The right of the spouse, as an important civil right, belongs to the right of identity. Non-property right. After the right is formed, the enjoyment of the right is bound to exercise the right to realize its own in any of that legal relationship, the rights and obligations are mutually opposite, interdependent and interrelated. the exercise of the right to a violation of the restriction constitutes an abuse of the right and, for others, if that right of the spouse is a specific one, the right of the spouse is specific. One of the important civil rights between the spouses is the rights and obligations of a series of spouses. Spouses Both sides have the pursuit of the realization The right of the right of the spouse, and the body of the obligation has the obligation not to violate the right of the spouse. The second part of the right of the spouse First, the spouse's concept and the nature of the spouse ultimately reflect the relationship between women and men in a legitimate marriage The right to the identity of a gender. The husband and wife shall be referred to as each other. 2. The concept of the spouse's right to be a family. (I) The evolution of the right of the spouse (2) the concept of the right of the spouse On the basis of summarizing the various points of view, it is pointed out that the existence of the right of the spouse is based on the legal and effective relationship of the husband and wife; the other, the right of the spouse belongs to the right of identity. Third, the right of the spouse is a husband and wife; and the right of the spouse is the right of the husband and wife. The author's definition of the right of the spouse is as follows: The right of spouse refers to the right and mutual negative obligation of the husband and wife established on the basis of the relationship of the legitimate marriage. the right to basic identity. sign: First, the subject of the right Qualitative; second, the benefit of the object of the right the nature of the rights and obligations of the third and the third parties. in that light of the author's view, the right of the spouse to the right of the spouse is relative to each other The nature of the right, for the third, the right to a spouse has an absolute The nature of the right to a spouse absolute right At the same time, the author argues that the right of the spouse has the property of the right of support and the right of claim. V. The content of the right of the spouse in the study of the tomb of various theories, the author It is pointed out that the right of the spouse is the main It is composed of the following specific contents: (1) the family name of the husband and wife (2) the right to residence; (2) the right of residence; (3) the right to cohabitation; (4) The fidelity of the chastity (6) the right of daily family agent; and (7) the right to mutual support. The third part of the right of the right of the spouse to the right of the right of the right of the right of the right, the question is raised: the infringement of the spouse the act of the right in that case of a violation, it shall be subject to the regulation of the act of tort. II. Analysis of the Elements of the Civil Liability for Infringement of the Right of Spouse civil liability of general tort On the basis of the elements, the author thinks that the civil responsibility of the right of the spouse Any act is also composed of four elements, namely, the illegal act, the damage Real, causality and subjective fault. 3. The type of the right of the spouse right is based on the tort. The theory of law, in combination with the characteristics of the right of the spouse, the author The violation of the right to a spouse, in accordance with different criteria, may The following classification is made: (1) internal and external rights violations; (2) Aggressive invasion a right act and a negative tort; (3) a single invasion. (4) The right to conduct and the co-operation; and (4) direct violations and Indirect torts. Further, the author Specific provisions in connection with the right to a spouse The content is focused on the infringement of the right of the spouse. various forms of expression. IV. In the case of an infringement of a spouse In addition to the typical behavior of the right, do some of the actions
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D913
【引证文献】
相关硕士学位论文 前7条
1 于广义;论我国离婚损害赔偿制度之完善[D];中国政法大学;2010年
2 王莹;论第三者侵害配偶权的民事责任[D];南京大学;2011年
3 邵军兰;婚姻法中损害赔偿制度研究[D];兰州大学;2007年
4 郭景春;配偶权与隐私权冲突问题研究[D];复旦大学;2008年
5 吕媛媛;配偶权问题研究[D];河北大学;2010年
6 赵凯凯;“婚外情行为”分析及婚姻关系中配偶权的保护[D];兰州大学;2012年
7 张光楠;试论配偶权[D];吉林财经大学;2012年
本文编号：2378118
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