配偶权与隐私权冲突问题研究
发布时间：2019-05-16 19:51
【摘要】： 配偶权与隐私权的冲突往往发生于无过错配偶一方对其配偶的婚外恋捉奸过程中。之所以会发生这样的冲突,主要的原因就在于配偶权的行使方式以及无过错配偶方为维护自己的配偶权益而取得证据的方式上。我国新婚姻法规定夫妻之间有互相忠实的义务,忠实义务是配偶权的一项重要内容,而当配偶一方发生婚外恋时,则毫无疑问地违背了其对配偶的忠实义务。而另一方为了维护自己的配偶权,往往会采取一定的方式去获取证据,而在这个取得证据的过程中就极有可能会发生隐私权与配偶权的冲突。 配偶权与隐私权的冲突问题导源于现实生活中无过错配偶一方为了维护自己的合法权益而采取一些诸如查询电话记录、翻看日记、跟踪拍录等“捉奸”行为所获得的证据在法庭上是否合法有效的争议问题,根据我国现有的证据法(及其解释)通过这样的方式所取得的证据是无效的,但司法实践中已有法官突破了这个规定,对这样的证据予以采纳。实际上,由于婚外恋行为的隐蔽性,要求无过错配偶一方只能采取“正大光明”的方式去取得证据来维护自己的合法配偶权是不现实的。 证据的效力问题乃是个程序法问题,笔者本篇文章并不是要讨论证据的效力问题,本文主要还是从实体法的角度对配偶权与隐私权的冲突与平衡问题进行探讨。 本文第一章主要论述了配偶权与隐私权的权利范围及对其的侵权构成以及对目前理论界还有争议的婚外恋能否主张隐私权的问题进行了探讨。只有明确了权利的界限,才能更好地对侵权行为进行认定,而对侵犯配偶权与隐私权行为的认定,则有助于我们探讨配偶权与隐私权之间的冲突问题。本章第一节从配偶权的概念出发,阐述丁配偶权的性质、特征及其范围,并对侵犯配偶权的行为作了详细的分析,指出侵犯配偶权的行为乃属于一般侵权行为,必须符合一般侵权行为的构成要件,即违法行为、损害后果、违法行为与损害后果的因果关系以及行为人的主观过错四个要件。第二节主要阐述了隐私的范围、隐私权的界限及对其侵权的构成,根据民法的基本原理,侵犯隐私权的行为也属于一般侵权行为。第三节分别从道德和法律的角度深入分析了婚外恋行为的性质,得出了婚外恋虽然是一种违背道德和伦理的行为但却可以主张隐私权的结论。 第二章从现实生活的疑难案例出发,导引出对权利冲突问题的法理学思考。本章第二节主要对权利冲突现象的原因进行了比较全面的分析,指出权利冲突产生的原因主要有权利设定的不和谐、权利本身界限的模糊性、人天性中的扩张本能、新生权利的出现与原有权利的消失、资源的有限性等原因,并在此基础上详细分析了隐私权冲突现象的主要原因,随后,对权利冲突的本质进行了剖析,指出权利冲突问题实质上乃是利益的冲突与价值观的冲突问题。第三节分别论述了配偶权忠实义务和隐私权的法律价值,指出配偶权忠实义务主要代表了人类婚姻家庭关系中的正义价值,而对隐私权的保护则维护了个人的自由、社会的秩序和人的尊严的价值。 权利冲突的解决途径主要有立法和司法两种方式。但无论是立法者在权利冲突发生之前对权利进行配置,还是法官在权利冲突产生之后运用自由裁量权来解决冲突,笔者认为都应该从以下两方面来平衡两者之间的冲突,一是从利益衡量的角度来考虑,二是从公序良俗的视角去分析,第三章主要是从这两个方面来分析配偶权与隐私权之间的冲突与平衡,最后得出应该优先保护配偶权的结论,但这种保护也是有限制的,即为了维护自己配偶权权益的配偶一方,只能用所获得的证据来维护自己的正当权益,而不能将其任意散播,否则就构成侵犯他人的隐私权。
[Abstract]:The conflict between the right of the spouse and the right to privacy often occurs in the process of the spouse's extramarital affair with the spouse. The main reason for such a conflict lies in the manner in which the right of the spouse is exercised and the manner in which the no-fault partner obtains the evidence for the maintenance of its own spouse's rights and interests. The new marriage law of our country stipulates that the husband and wife have the obligation to be faithful to each other, the duty of the faithful is an important part of the right of the spouse, and when the spouse of the spouse has an affair, there is no doubt that it is in breach of its faithful duty to the spouse. In order to maintain the right of spouse, the other party often takes a certain way to get the evidence, and in the process of obtaining the evidence, there may be a conflict between the right to privacy and the right of the spouse. The conflict between the right of the spouse and the right to privacy is derived from the fact that the failure of the spouse in the real life to maintain the legitimate rights and interests of the spouse and to take some evidence, such as the inquiry of telephone records, the reading of the diary, and the tracking of the "traitors", is legally and effectively in the court. The question is that the evidence obtained in such a way is null and void, in accordance with the existing evidence law (and its interpretation) in our country, but in the judicial practice, the judge has broken through the provision and In fact, because of the hidden nature of the affair of the extramarital affair, it is required that the spouse of the fault-free spouse can only take the "bright and bright" to obtain the evidence to maintain the right of the legitimate spouse. The validity of the evidence is a procedural law. The author of this article is not the question of the validity of the evidence. The article mainly discusses the conflict and the balance between the right of the spouse and the right of privacy from the perspective of the substantive law. The first chapter of this article mainly discusses the scope of the right of the spouse and the right to privacy, the composition of the infringement of the right to privacy and the possibility of the right to privacy in the present theory. The issue of the right of the spouse and the privacy of the right to privacy can be better recognized, and the right of the spouse and the privacy of the right to privacy can be found to be helpful for us to explore the right of the spouse and the privacy. The first section of this chapter, from the concept of the right of the spouse, expounds the nature, character and scope of the right of the spouse, and analyses the behavior of the right of the spouse, and points out that the violation of the right of the spouse is a general tort and must be in accordance with the general invasion. The constitutive elements of the right act, namely, the illegal act, the consequences of the damage, the cause and effect of the illegal act and the damage, and the actor's The second section mainly expounds the scope of the privacy, the limit of the right of privacy and the composition of the infringement, and according to the basic principle of the civil law, the violation of the right to privacy also In the third section, the article analyzes the nature of extramarital love from the angle of morality and law, and concludes that the extramarital love is a kind of behavior that is contrary to the morality and the ethics, but it can The second chapter, from the difficult case of real life, guides the right to privacy. The second section of this chapter mainly analyses the causes of the conflict of rights, and points out that the causes of the conflict of rights mainly have the inharmony of the rights, the fuzziness of the limit of the right itself, the expansion instinct in the human nature, the new right. This paper analyzes the main causes of the phenomenon of the right to privacy, and then analyzes the essence of the right conflict, and points out that the problem of right conflict is of interest. The third section discusses the legal value of the faithful duty of the spouse and the right of privacy, and points out that the faithful duty of the spouse is the justice value in the relationship between the family and the family, while the protection of the right to privacy has maintained the freedom and the society of the individual. The value of order and human dignity. Resolution of the conflict of rights There are two ways of legislation and justice. However, whether the legislator has the right to configure the right before the right conflict occurs, or the judge uses the discretion to solve the conflict before the conflict occurs, the author believes that the conflict between the two aspects should be balanced from the following two aspects The second part is to analyze the conflict and balance between the right of the spouse and the right of privacy, and finally, we should give priority to the protection of the right of the spouse. However, this protection is also limited, that is, in order to protect the spouse of the rights and interests of their spouses, it is only possible to use the evidence obtained to safeguard the legitimate rights and interests of their spouses and not to spread it arbitrarily
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D913
本文编号：2478519
[Abstract]:The conflict between the right of the spouse and the right to privacy often occurs in the process of the spouse's extramarital affair with the spouse. The main reason for such a conflict lies in the manner in which the right of the spouse is exercised and the manner in which the no-fault partner obtains the evidence for the maintenance of its own spouse's rights and interests. The new marriage law of our country stipulates that the husband and wife have the obligation to be faithful to each other, the duty of the faithful is an important part of the right of the spouse, and when the spouse of the spouse has an affair, there is no doubt that it is in breach of its faithful duty to the spouse. In order to maintain the right of spouse, the other party often takes a certain way to get the evidence, and in the process of obtaining the evidence, there may be a conflict between the right to privacy and the right of the spouse. The conflict between the right of the spouse and the right to privacy is derived from the fact that the failure of the spouse in the real life to maintain the legitimate rights and interests of the spouse and to take some evidence, such as the inquiry of telephone records, the reading of the diary, and the tracking of the "traitors", is legally and effectively in the court. The question is that the evidence obtained in such a way is null and void, in accordance with the existing evidence law (and its interpretation) in our country, but in the judicial practice, the judge has broken through the provision and In fact, because of the hidden nature of the affair of the extramarital affair, it is required that the spouse of the fault-free spouse can only take the "bright and bright" to obtain the evidence to maintain the right of the legitimate spouse. The validity of the evidence is a procedural law. The author of this article is not the question of the validity of the evidence. The article mainly discusses the conflict and the balance between the right of the spouse and the right of privacy from the perspective of the substantive law. The first chapter of this article mainly discusses the scope of the right of the spouse and the right to privacy, the composition of the infringement of the right to privacy and the possibility of the right to privacy in the present theory. The issue of the right of the spouse and the privacy of the right to privacy can be better recognized, and the right of the spouse and the privacy of the right to privacy can be found to be helpful for us to explore the right of the spouse and the privacy. The first section of this chapter, from the concept of the right of the spouse, expounds the nature, character and scope of the right of the spouse, and analyses the behavior of the right of the spouse, and points out that the violation of the right of the spouse is a general tort and must be in accordance with the general invasion. The constitutive elements of the right act, namely, the illegal act, the consequences of the damage, the cause and effect of the illegal act and the damage, and the actor's The second section mainly expounds the scope of the privacy, the limit of the right of privacy and the composition of the infringement, and according to the basic principle of the civil law, the violation of the right to privacy also In the third section, the article analyzes the nature of extramarital love from the angle of morality and law, and concludes that the extramarital love is a kind of behavior that is contrary to the morality and the ethics, but it can The second chapter, from the difficult case of real life, guides the right to privacy. The second section of this chapter mainly analyses the causes of the conflict of rights, and points out that the causes of the conflict of rights mainly have the inharmony of the rights, the fuzziness of the limit of the right itself, the expansion instinct in the human nature, the new right. This paper analyzes the main causes of the phenomenon of the right to privacy, and then analyzes the essence of the right conflict, and points out that the problem of right conflict is of interest. The third section discusses the legal value of the faithful duty of the spouse and the right of privacy, and points out that the faithful duty of the spouse is the justice value in the relationship between the family and the family, while the protection of the right to privacy has maintained the freedom and the society of the individual. The value of order and human dignity. Resolution of the conflict of rights There are two ways of legislation and justice. However, whether the legislator has the right to configure the right before the right conflict occurs, or the judge uses the discretion to solve the conflict before the conflict occurs, the author believes that the conflict between the two aspects should be balanced from the following two aspects The second part is to analyze the conflict and balance between the right of the spouse and the right of privacy, and finally, we should give priority to the protection of the right of the spouse. However, this protection is also limited, that is, in order to protect the spouse of the rights and interests of their spouses, it is only possible to use the evidence obtained to safeguard the legitimate rights and interests of their spouses and not to spread it arbitrarily
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D913
【引证文献】
相关硕士学位论文 前2条
1 王睿冰;论婚内隐私权的法律保护[D];扬州大学;2010年
2 张光楠;试论配偶权[D];吉林财经大学;2012年
，本文编号：2478519
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