论死者人格利益的民法保护

发布时间：2018-04-02 02:41

本文选题：人格权　切入点：死者人格利益　出处：《复旦大学》2013年硕士论文

【摘要】：近年来,有关死者人格利益的纠纷时有发生。当死者人格利益遭受侵害时,在民事法律上应如何加以保护这一问题引发了社会各界的关注。在我国法学界,学者对死者人格利益保护的研究热情日益高涨,从不同维度提出了众多创见；在司法实践中,我国最高人民法院出台了一系列相关的司法解释,一些法院也对保护死者人格利益的实务操作作出了积极有益的探索。但同时,也应看到,在学术研究领域,对死者人格利益保护的最佳途径尚无定论；在立法上,对死者人格利益保护的法律规定尚不成熟；在司法实践中,很多法律适用和具体操作问题尚未明确,需要作更为深入的探讨。本文在厘清死者人格利益的概念内涵、分析学术界对死者人格利益保护的主要学说及国外保护现状的基础上,提出了“死者人格利益保护说”,并对我国死者人格利益保护的立法和司法提出了完善建议。正文从以下六部分展开论述：第一部分阐述保护死者人格利益的现实性和必要性。通过对相关案例的介绍、分析及价值判断,说明保护死者人格利益的现实性和必要性。同时提出我国死者人格利益保护机制存在的问题,如何解决这些问题是本文讨论的主要内容。第二部分厘清与死者人格利益相关的几个概念内涵。明确人格、人格权、人格利益这几个基本概念及它们之间的关系。从而进一步界定死者人格利益的内涵。这些概念是全文论述的着眼点和出发点。第三部分介绍和探讨学术界关于死者人格利益保护的几种主要学说。分析每种学说的合理性和局限性,并在此基础上提出“死者人格利益保护说”。第四部分介绍国外死者人格利益保护的现状。分别考察具有代表意义的英美法系和大陆法系国家、地区死者人格利益保护的现状。为我国死者人格利益保护机制的建立提供思路和经验。第五部分阐述我国死者人格利益保护的立法现状。介绍和分析在我国司法实践中与死者人格利益保护相关的四个司法解释。第六部分提出完善我国死者人格利益保护的立法及司法建议。立法上进一步完善死者人格尊严和具体人格利益保护的法律规定；司法上建立死者人格利益保护的请求制度。
[Abstract]:In recent years, disputes about the personality interests of the deceased have occurred from time to time. When the personal interests of the deceased are infringed upon, the problem of how to protect the interests of the deceased in civil law has aroused the attention of all circles of the society. Scholars' enthusiasm for the protection of the deceased's personality interests is growing, and many innovative ideas have been put forward from different dimensions. In judicial practice, the Supreme people's Court of our country has issued a series of related judicial explanations. Some courts have also made positive and beneficial explorations on the practical operation of protecting the interests of the deceased. But at the same time, it should also be noted that in the field of academic research, the best way to protect the interests of the deceased has not yet been decided; in legislation, The legal provisions on the protection of the personality interests of the deceased are not yet mature; in judicial practice, many problems concerning the application of the law and the specific operation have not yet been clarified, so it is necessary to make a more thorough discussion. On the basis of clarifying the connotation of the concept of the deceased's personality interests, analyzing the main theories of the academic circles on the protection of the deceased's personality interests and the present situation of the protection of the deceased's personality interests abroad, This paper puts forward the theory of the protection of the personality interests of the deceased, and puts forward some suggestions to perfect the legislation and judicature of the protection of the interests of the deceased in our country. The text is discussed from the following six parts:. The first part describes the reality and necessity of protecting the interests of the deceased. Through the introduction of relevant cases, analysis and value judgment, This paper illustrates the reality and necessity of protecting the interests of the deceased, and points out the problems existing in the mechanism of protecting the interests of the deceased in China, and how to solve these problems is the main content of this paper. The second part clarifies several concepts related to the interests of the deceased's personality. These basic concepts of personality interest and their relationship, thus further define the connotation of the deceased's personal interests. These concepts are the starting point and starting point of the full text. The third part introduces and discusses several main theories about the protection of the personality interests of the deceased in academic circles, analyzes the rationality and limitation of each theory, and puts forward the theory of the protection of the interests of the deceased personality on this basis. The fourth part introduces the status quo of the protection of the interests of the deceased in foreign countries. The present situation of the protection of the personality interests of the deceased in the region provides the train of thought and experience for the establishment of the protection mechanism of the personality interests of the deceased in our country. The fifth part expounds the legislative status of the protection of the personality interests of the deceased in our country, and introduces and analyzes four judicial explanations related to the protection of the interests of the deceased in the judicial practice of our country. The sixth part puts forward the legislative and judicial suggestions to perfect the protection of the interests of the deceased in our country. In legislation, it further consummates the legal provisions of the protection of the human dignity and the specific interests of the deceased, and establishes the request system for the protection of the interests of the deceased in the judicial field.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.1

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