论胎儿生命权益与妇女堕胎权的冲突

发布时间：2018-08-06 19:55

【摘要】：不同权利之间发生冲突是在所难免的,胎儿生命权益与妇女堕胎权之间的冲突就是权利冲突的一种重要类型,胎儿生长于母亲体内,但却享有独立于其母亲的权益,冲突便不可避免了。权利之间既然形成冲突,那么调和冲突的法律平衡机制的构建便成了必须。如何正确处理胎儿生命权益与妇女堕胎权之间的冲突,不仅关系着个人利益保护,而且关系着国家和社会的重大利益,然而目前我国人口压力巨大,再加上计划生育政策疾风暴雨的推行,我国学者对这一问题并没有太多的关注,法律也表现出一种含糊其辞的态度。因此,本文拟对胎儿生命权益与妇女堕胎权的冲突展开研究,以我国目前胎儿生命权益与妇女堕胎权的失衡为切入点,论述冲突的表现以及原因,并落脚于解决我国的失衡难题。本文共分为四个部分,第一部分为“我国胎儿生命权益与妇女堕胎权冲突的现状”,分两个方面,一方面介绍了目前我国的堕胎频发的现实,并分析其原因;另一方面讲述堕胎盛行的背后胎儿生命权益保护的不足。胎儿生命权益与妇女堕胎权冲突的失衡局面在我国显露无疑。第二部分为“域外胎儿生命权益与妇女堕胎权冲突的表现与调和”,介绍具有代表性的美国模式和德国模式。在美国,最高法院不认为胎儿是宪法上的人,妇女享有堕胎的自由,但是在妊娠后期,各州可以基于其保护生命的合法利益而限制甚至禁止妇女的堕胎行为。在德国,联邦宪法法院认为胎儿是宪法上的人,国家必须为其提供保护,妇女不得任意堕胎,除非在妊娠前十二周并经过严格的程序,否则将被定为犯罪。第三部分为“我国胎儿生命权益与妇女堕胎权冲突的主要根源”,深入分析冲突的主要原因。胎儿生命权益与妇女堕胎权冲突的原因是多方面的,既有生理、科技、道德、宗教方面的原因,也与国情和法律相关。计划生育政策的实施推动了堕胎的频繁发生,这是激发冲突的重要原因之一。冲突的原因还在于,法律认可胎儿享有部分权益,胎儿的生命权益受法律保护;权利的客体之间相互冲突,则是根本原因;最后是因为妇女的堕胎权是一项自由权,妇女可以自主决定与自身利益相关的事项。第四部分为“胎儿生命权益与妇女堕胎权冲突的法律平衡”,旨在从法律层面为调和胎儿生命权益与妇女堕胎权的冲突提供参考。该部分首先对我国法律体系内涉及堕胎问题的法律进行分析,指出其不足之处,其次结合前文的冲突现状、冲突根源和国外的优秀实践,建议未来立法应当明确胎儿的生命权益受法律保护,同时建议修改《人口与计划生育法》,限制中晚期堕胎行为。
[Abstract]:The conflict between different rights is unavoidable. The conflict between the rights and interests of the fetus and the right to abortion is an important type of conflict of rights. The fetus grows in the mother's body, but it enjoys the rights and interests of its mother. The conflict is inevitable. Since the conflict is formed between rights, the legal balance of the conflict is reconciled. The construction of the mechanism has become necessary. How to correctly handle the conflict between the rights and interests of the fetus and the right of women's abortion is not only related to the protection of personal interests, but also to the great interests of the state and society. However, at present, the population pressure of our country is huge. There is not much attention, and the law shows a vague attitude. Therefore, this article is to study the conflict between the rights and interests of the fetus and the right to abortion of women, and take the imbalance between the rights and rights of the fetus and the abortion of women as the breakthrough point, and discuss the manifestations and reasons of the conflict, and fall on the problem of solving the problem of imbalance in our country. It is divided into four parts. The first part is "the current situation of the conflict between the rights and interests of the fetus in our country and the right to abortion of women", which is divided into two aspects. On the one hand, it introduces the reality of the frequent abortion in our country and analyzes its reasons. On the other hand, it tells about the deficiency of the protection of the right of life for the fetus behind the prevalence of abortion. The rights and interests of the fetus and the abortion of women are also described. The unbalance of the conflict of rights is unfolding in our country. The second part is "the expression and reconciliation of the conflict between the rights and interests of the fetus and the right to abort women", and introduces the representative American model and the German model. In the United States, the Supreme Court does not think that the fetus is constitutional, the women enjoy the freedom of abortion, but in the late pregnancy, the States In Germany, the federal constitutional court holds that the fetus is a constitutional person in Germany, that the state must provide protection, and that women shall not have any abortion, unless the twelve weeks before pregnancy and through strict procedures will be committed as a crime. The third part is "I" The main cause of the conflict between the rights and interests of the fetus and the right to abortion of women "is the main cause of the conflict. The reasons for the conflict between the rights and interests of the fetus and the abortion rights of women are multifaceted, both physical, scientific, moral and religious, and related to the national conditions and laws. The implementation of the family planning policy has promoted the frequent occurrence of abortion. This is one of the important reasons for the conflict. The reason for the conflict is that the law recognised that the fetus enjoys some rights and interests, the rights and interests of the fetus are protected by the law; the conflict between the objects of the rights is the fundamental reason; finally, the woman's right to abortion is a free right, and women can decide on their own interests independently. The fourth part is "the legal balance of the conflict between the rights and interests of the fetus and the right to abortion of women", which aims to provide a reference to the legal level to reconcile the conflict between the rights and interests of the fetus and the right to abort women. It is suggested that the future legislation should make clear the legal protection of the rights and interests of the fetus, and suggest that the law of population and family planning should be amended to restrict the abortion in the middle and late stages.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924

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