论生育权主体的认定与法律保护

发布时间：2019-05-17 19:12

【摘要】： 生育权是指自然人繁衍后代的权利。作为婚姻法调整的内容,它是夫妻双方在婚姻家庭关系中的一项基本权利。近年来生育权纠纷不断出现,生育权主体理论研究愈加深入,其探讨不再局限于婚姻内部。生育权的主体范围、行使方式以及应受到的各种限制等,都成为学者热议的话题。我国法律对此,既没有做到具体细化,也未能推陈出新,迎合时代步伐与国际主流,着实令人遗憾。鉴于此,本文主要采用比较分析与实践分析相结合的方法,探讨我国生育权主体的学理关联、实践保护与立法构造,以期推进我国生育权主体的法律研究。生育权主体究竟涵盖何等范围与资质人群?对此应从生育权性质入手,构建生育权学理与主体之关联。结合传统理论与实践纠纷,生育权性质应完整解读为宪法权利与民事权利的完美融合,兼具身份性特征的人格权。以此理论指导生育权主体的认定,并将其划分为婚姻内外两类人群。婚姻内部生育权主体为夫妻,鉴于女性是生育过程的绝对载体,生育涉及到其身体权处分,因此需给予妻子特殊关注,以实现夫妻主体地位的实质平等;婚姻外部生育权主体,即在非婚状态下欲实现生育的个人,对此类特殊主体认定应从生育基础理论入手,探寻其实现生育的必要性与可行性。同时中国社会的传统生育观念不可摒弃,人口大国的计划生育政策仍将沿袭,因此给予生育权主体以必要限制,实为明智之举。现阶段我国生育权主体立法缺失,无论是理论认定,还是现实推进,都存在一定空白。尤其是对于婚内主体的权利冲突及解决、特殊主体的限制与保护等问题,“无法可依”成为实践中最大难题。因此应作如下立法构建:首先,完善《宪法》、《婚姻法》、《人口与计划生育法》相关规则,不但从制度上扩大生育权主体的认定范围,而且从技术层面细化对生育权主体的保护路径;其次,出台相应司法解释,以解决实践中出现的各类生育权纠纷;最后从长远角度,将其纳入未来民法典亲属篇,亦为构建生育权主体立法的必要举措。目前不断涌现的实践新问题,反映出生育权主体立法之紧要性,不仅在于解决此项专题,更在于健全我国法制。对生育权主体的认定与法律保护,不但需顺应时代潮流,跟进国际主流,更应从国情出发,构建适合我国本土气候的法律体系,以便增强良法的公信力度。
[Abstract]:Reproductive rights refer to the right of natural persons to reproduce. As the content of marriage law adjustment, it is a basic right of husband and wife in marriage and family relations. In recent years, reproductive rights disputes continue to emerge, and the theoretical research on the subject of reproductive rights is becoming more and more in-depth, and its discussion is no longer limited to marriage. The subject scope, exercise mode and all kinds of restrictions of reproductive rights have become the hot topics of scholars. It is a pity that the law of our country has not been concrete and detailed, nor has it been able to bring forth new ideas, so as to cater to the pace of the times and the mainstream of the world. In view of this, this paper mainly uses the method of comparative analysis and practical analysis to explore the theoretical relationship, practical protection and legislative structure of the subject of reproductive rights in China, in order to promote the legal research of the subject of reproductive rights in China. What kind of scope and qualification group does the subject of reproductive right cover? In order to solve this problem, we should start with the nature of reproductive rights and construct the relationship between the theory of reproductive rights and the subject. Combined with the traditional theoretical and practical disputes, the nature of reproductive rights should be interpreted as the perfect integration of constitutional rights and civil rights, and the personality right with the characteristics of identity. This theory is used to guide the identification of the subject of reproductive rights, and it is divided into two categories of people, both inside and outside marriage. The subject of reproductive rights in marriage is husband and wife. In view of the fact that women are the absolute carrier of the birth process, fertility involves the punishment of their body rights, so it is necessary to pay special attention to the wife in order to realize the substantive equality of the subject status of husband and wife. The subject of external reproductive right of marriage, that is, the individual who wants to realize fertility under the condition of non-marriage, should start with the basic theory of fertility and explore the necessity and feasibility of realizing fertility. At the same time, the traditional concept of fertility in Chinese society can not be abandoned, and the family planning policy of the populous countries will still follow, so it is wise to give the subject of reproductive rights the necessary restrictions. At present, there are some gaps in the legislation of the subject of reproductive rights in our country, both in theory and in reality. Especially for the conflict and solution of the rights of the subject in marriage, the restriction and protection of the special subject, "there is no law to follow" has become the biggest problem in practice. Therefore, the following legislative structures should be made: first of all, perfecting the relevant rules of the Constitution, the Marriage Law and the population and Family Planning Law, not only expanding the scope of the identification of the subject of reproductive rights from the institutional point of view, And from the technical level to refine the protection path of the subject of reproductive rights; Secondly, the corresponding judicial interpretation is issued to solve all kinds of reproductive rights disputes in practice; finally, from a long-term point of view, it is included in the future civil code relatives, which is also a necessary measure to construct the legislation of the subject of reproductive rights. At present, the new problems in practice reflect the importance of the legislation of the subject of reproductive rights, not only to solve this topic, but also to improve the legal system of our country. The identification and legal protection of the subject of reproductive rights should not only conform to the trend of the times and follow up with the international mainstream, but also construct a legal system suitable for the local climate of our country according to the national conditions, so as to strengthen the public trust of good law.
【学位授予单位】：扬州大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.16

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