我国首例人体冷冻胚胎权属争议案评析
发布时间：2018-08-07 18:42
【摘要】：对借助于体外受精——胚胎移植这种人工辅助生殖技术所产生的胚胎的法律地位问题,我国法律尚无明确的规定。学术界对此问题也存在争议,目前主要有三种学说,即主体说、客体说和折中说。国外的相关立法与司法实践也表现出不同的倾向与做法。我国现存关于该问题的立法,多属于行政管理性规范,而司法作为社会救济的手段,即使法律没有明确规定,面对现实中出现的争议必须给出明确的判决,因此,研究司法实践中的具体案例意义重大。对我国首例人体冷冻胚胎权属争议案这一典型案例进行分析,从案件的争议焦点以及案件经过两审发生的转变入手,借助于关于冷冻胚胎法律地位的相关理论分析和相关立法及司法实践的域外经验,具体探讨案件的几个争议焦点,即案件中的知情同意书是否对涉案冷冻胚胎作出处分,涉案冷冻胚胎的法律地位,涉案冷冻胚胎的权利归属及支配规则,案件性质的确定和案件涉及的程序问题。最终得出关于各个争议焦点的相应的结论,并进一步简单探讨对特殊情况下的冷冻胚胎实行捐赠收养制度的可行性,我国未来关于胚胎法律地位的立法要特别考虑我国的人口、社会保障等政策。即使在法无明文规定的情形下,法院依然要依法作出裁判,对我国首例人体冷冻胚胎权属争议案进行评析,体现了司法作为社会救济的手段必须坚持的理念,以事实为依据,以法律为准绳,是司法工作人员必须坚守的准则,面对新型疑难案件,不违背法律的禁止性规定,作出合乎法理与情理的裁判,使法律充满人文关怀,这样的法律才更有生命力。
[Abstract]:There is no clear stipulation on the legal status of embryos produced by in vitro fertilization and embryo transfer. At present, there are three kinds of theories, namely the subject theory, the object theory and the compromise theory. Foreign related legislation and judicial practice also show different tendencies and practices. Most of the existing legislation on this issue in our country belongs to the administrative norm, and the judicature, as a means of social relief, even if the law is not clearly stipulated, we must give a clear judgment in the face of the disputes that appear in reality, so, It is of great significance to study the specific cases in judicial practice. This paper analyzes the first case of human frozen embryo ownership dispute in China, starting with the focus of the case and the change of the case after the two trials. With the help of the relevant theoretical analysis on the legal status of frozen embryos and the extraterritorial experience of relevant legislation and judicial practice, this paper specifically discusses several controversial points in the case, that is, whether the informed consent letter in the case should take action against the frozen embryo involved in the case. The legal status of the frozen embryos involved in the case, the rights of the frozen embryos involved and the rules of their domination, the determination of the nature of the case and the procedural issues involved in the case. Finally, it draws the corresponding conclusions about the various controversial points, and further discusses the feasibility of the system of donation and adoption of frozen embryos under special circumstances. The future legislation on the legal status of embryos in our country should take special account of the population of our country. Social security and other policies Even if there is no express provision in the law, the court still has to make a decision according to law, to comment on the first dispute over the ownership of human frozen embryos in our country, which embodies the idea that the judiciary, as a means of social relief, must adhere to, based on facts. Taking the law as the yardstick is the norm that judicial staff must adhere to. In the face of new types of difficult cases, they should not violate the prohibited provisions of the law, make decisions in accordance with legal and reasonable principles, and make the law full of humanistic concern. Such laws are more alive.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923;D920.5
本文编号：2171000
[Abstract]:There is no clear stipulation on the legal status of embryos produced by in vitro fertilization and embryo transfer. At present, there are three kinds of theories, namely the subject theory, the object theory and the compromise theory. Foreign related legislation and judicial practice also show different tendencies and practices. Most of the existing legislation on this issue in our country belongs to the administrative norm, and the judicature, as a means of social relief, even if the law is not clearly stipulated, we must give a clear judgment in the face of the disputes that appear in reality, so, It is of great significance to study the specific cases in judicial practice. This paper analyzes the first case of human frozen embryo ownership dispute in China, starting with the focus of the case and the change of the case after the two trials. With the help of the relevant theoretical analysis on the legal status of frozen embryos and the extraterritorial experience of relevant legislation and judicial practice, this paper specifically discusses several controversial points in the case, that is, whether the informed consent letter in the case should take action against the frozen embryo involved in the case. The legal status of the frozen embryos involved in the case, the rights of the frozen embryos involved and the rules of their domination, the determination of the nature of the case and the procedural issues involved in the case. Finally, it draws the corresponding conclusions about the various controversial points, and further discusses the feasibility of the system of donation and adoption of frozen embryos under special circumstances. The future legislation on the legal status of embryos in our country should take special account of the population of our country. Social security and other policies Even if there is no express provision in the law, the court still has to make a decision according to law, to comment on the first dispute over the ownership of human frozen embryos in our country, which embodies the idea that the judiciary, as a means of social relief, must adhere to, based on facts. Taking the law as the yardstick is the norm that judicial staff must adhere to. In the face of new types of difficult cases, they should not violate the prohibited provisions of the law, make decisions in accordance with legal and reasonable principles, and make the law full of humanistic concern. Such laws are more alive.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923;D920.5
【引证文献】
相关硕士学位论文 前1条
1 郭璇;黄某诉广东中泽重工有限公司劳动争议案评析[D];湖南大学;2016年
，本文编号：2171000
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