論婚內侵權民事責任制度的構建
發(fā)布時間：2018-08-22 20:32
【摘要】：婚姻,是為當時社會制度所確認的、男女兩性互為配偶的結合。中國經(jīng)歷了兩千多年的封建社會,受“法不入家門”、“家丑不可外揚”、“以和為貴”等傳統(tǒng)思想的影響,很多人不愿直面婚內侵權行為,他們往往不愿放棄家庭的和睦而采用訴訟的手段來維護自己的權益,認為婚內侵權行為只是夫妻之間的一種私事,因此在發(fā)生婚內侵權行為時侵權人便會順理成章地逃避法律的制裁。隨著我國經(jīng)濟的發(fā)展,社會的進步,公民思想有了很大的轉變,并沒有再像從前一樣一味的束縛于舊觀念、舊思想傳統(tǒng)之中,加上改革開放帶來的新事物,讓我們有機會接觸到西方的文化。這讓越來越多的已婚婦女已經(jīng)意識到自己的權利,從而拿起法律的武器去保護自己的權益。遺憾的是我國現(xiàn)行《婚姻法》在追究婚內侵權行為的民事責任時,存在著嚴重的缺陷,不能很好的對受害人進行有效的司法救濟,也不能起到遏制夫妻侵權行為的目的。學術界對構建婚內侵權民事責任的呼聲也越來越高,分歧矛盾也層出不窮�；閮燃彝リP系是最基本的社會關系,婚姻關系的穩(wěn)定關系到社會的穩(wěn)定,婚內侵權行為如果得不到有效地遏制勢必會影響到婚姻家庭的穩(wěn)定,因此構建婚內侵權民事責任制度是我國社會發(fā)展和構建和諧社會的內在需求。文章從婚內侵權是否承擔民事責任以及構建婚內侵權民事責任的理論依據(jù)和現(xiàn)實意義出發(fā),審視了構建婚內侵權民事責任制度所存在的障礙因素,圍繞著是否構成婚內侵權以及侵權責任承擔問題展開討論,并提出了排除障礙的相應法律對策,從而肯定了構建婚內侵權民事責任制度的可行性和必然性。本文在寫作方法上意在通過以我國現(xiàn)行立法為依據(jù),借鑒世界其他國家和地區(qū)的立法、司法經(jīng)驗,以民法、婚姻法、民事權利法律制度等作為切入點對婚內侵權民事責任制度構建進行了深入探討,以理論和實踐相結合為基本研究方法,輔之以歷史分析法、目的分析方法等研究方法,把實證和規(guī)范相結合。 全文除了引言和結束語之外,共分為三部分： 第一部分婚內侵權的認定。本章主要對婚內侵權的基本問題進行了論述,從婚內侵權的概念入手,闡述了婚內侵權的特點、構成要件和具體表現(xiàn)形式,把一般侵權行為和婚內侵權行為進行了對比分析,并對婚內侵權行為的分類以及幾種典型的婚內侵權行為進行了探討,以便更好地理解什么是婚內侵權行為,使今后對婚內侵權行為作出正確的判斷,更好地保障婚姻當事人的權益。 第二部分構建婚內侵權民事責任的可行性和制約因素。本部分結合我國民事責任制度的立法現(xiàn)狀對構建婚內侵權民事責任的可行性進行分析,指出我國在構建婚內侵權民事責任制度方面是有一定理論依據(jù)和法律依據(jù),從而肯定了構建婚內侵權民事責任制度的可行性。同時指出了在構建過程中學術界和實踐中出現(xiàn)的或者可能出現(xiàn)的阻礙婚內侵權民事責任制度構建的障礙因素,并對此進行全面分析。可以看出,構建我國婚內侵權民事責任制度勢在必行。 第三部分婚內侵權民事責任制度的構建。本部分首先闡述了構建婚內侵權民事責任制度的意義,從而肯定了婚內侵權民事責任制度在立法中的地位不容忽視,婚內侵權民事責任制度的確立對婚姻家庭立法的完善有著舉足輕重的作用。文章最后結合我國實際情況,針對本文第二部分所提到的可能出現(xiàn)的障礙因素提出了有針對性的立法對策,可以有效排除存在的問題,對構建我國婚內侵權民事責任制度起到的積極的作用。
[Abstract]:Marriage was a marriage affirmed by the social system at that time, in which men and women were married to each other. After more than 2000 years of feudal society in China, many people were reluctant to face up to marital infringement because of the influence of traditional ideas such as "law does not enter the family", "family ugliness should not be publicized", "harmony is the most precious" and so on. With the development of our economy and the progress of our society, the citizen's thought has changed greatly, and has not changed as before. Restricted by old ideas, old ideological traditions, and new things brought about by reform and opening up, we have the opportunity to come into contact with Western culture. This has made more and more married women aware of their rights and thus take up the legal weapon to protect their rights and interests. There are serious defects in the civil liability of acts, which can not provide effective judicial relief to the victims, nor can it serve the purpose of curbing marital infringement. The stability of marital relationship is related to the stability of society. If the marital infringement can not be effectively curbed, it will affect the stability of marriage and family. Therefore, the construction of civil liability system for marital infringement is the internal demand of social development and the construction of a harmonious society. Starting from the theoretical basis and practical significance of civil liability for rights, this paper examines the obstacles in the construction of civil liability for marital infringement, discusses whether it constitutes marital infringement and the problem of liability for infringement, and puts forward corresponding legal countermeasures to remove the obstacles, thus affirming the establishment of civil liability for marital infringement. Feasibility and inevitability. This paper intends to make a thorough discussion on the construction of civil liability system for marital infringement by taking the current legislation of our country as the basis, drawing on the legislative and judicial experience of other countries and regions in the world, taking civil law, marriage law, civil rights legal system as the breakthrough point, and combining theory with practice as the basis. Basic research methods, supplemented by historical analysis, purpose analysis and other research methods, combine empirical and normative methods.
Apart from the introduction and concluding remarks, the article is divided into three parts.
The first part is the determination of marital infringement. This chapter mainly discusses the basic problems of marital infringement. Starting from the concept of marital infringement, it expounds the characteristics, constitutive requirements and specific manifestations of marital infringement. It makes a comparative analysis of general infringement and marital infringement, and classifies marital infringement and several kinds of infringement. Typical marital infringement is discussed in order to better understand what is marital infringement, so as to make a correct judgment on marital infringement in the future and better protect the rights and interests of marital parties.
The second part is about the feasibility and restrictive factors of constructing civil liability for infringement in marriage.This part analyzes the feasibility of constructing civil liability for infringement in marriage in light of the legislative status quo of civil liability system in China,and points out that there are certain theoretical and legal basis for constructing civil liability system for infringement in marriage in China. At the same time, it points out the obstacles that appear in the academic circles and practice or may appear in the process of building the civil liability system of infringement in marriage, and makes a comprehensive analysis of them. It can be seen that it is imperative to establish the civil liability system of infringement in marriage in China.
The third part is the construction of the civil liability system of infringement in marriage.This part firstly expounds the significance of constructing the civil liability system of infringement in marriage,thus affirming that the status of civil liability system of infringement in marriage can not be ignored in legislation,and the establishment of civil liability system of infringement in marriage plays an important role in the perfection of marriage and family legislation. In the end, according to the actual situation of our country, the article puts forward some legislative countermeasures against the possible obstacles mentioned in the second part of this article, which can effectively eliminate the existing problems and play a positive role in constructing the civil liability system of marital infringement.
【學位授予單位】：廣西師范大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D923.9
本文編號：2198217
[Abstract]:Marriage was a marriage affirmed by the social system at that time, in which men and women were married to each other. After more than 2000 years of feudal society in China, many people were reluctant to face up to marital infringement because of the influence of traditional ideas such as "law does not enter the family", "family ugliness should not be publicized", "harmony is the most precious" and so on. With the development of our economy and the progress of our society, the citizen's thought has changed greatly, and has not changed as before. Restricted by old ideas, old ideological traditions, and new things brought about by reform and opening up, we have the opportunity to come into contact with Western culture. This has made more and more married women aware of their rights and thus take up the legal weapon to protect their rights and interests. There are serious defects in the civil liability of acts, which can not provide effective judicial relief to the victims, nor can it serve the purpose of curbing marital infringement. The stability of marital relationship is related to the stability of society. If the marital infringement can not be effectively curbed, it will affect the stability of marriage and family. Therefore, the construction of civil liability system for marital infringement is the internal demand of social development and the construction of a harmonious society. Starting from the theoretical basis and practical significance of civil liability for rights, this paper examines the obstacles in the construction of civil liability for marital infringement, discusses whether it constitutes marital infringement and the problem of liability for infringement, and puts forward corresponding legal countermeasures to remove the obstacles, thus affirming the establishment of civil liability for marital infringement. Feasibility and inevitability. This paper intends to make a thorough discussion on the construction of civil liability system for marital infringement by taking the current legislation of our country as the basis, drawing on the legislative and judicial experience of other countries and regions in the world, taking civil law, marriage law, civil rights legal system as the breakthrough point, and combining theory with practice as the basis. Basic research methods, supplemented by historical analysis, purpose analysis and other research methods, combine empirical and normative methods.
Apart from the introduction and concluding remarks, the article is divided into three parts.
The first part is the determination of marital infringement. This chapter mainly discusses the basic problems of marital infringement. Starting from the concept of marital infringement, it expounds the characteristics, constitutive requirements and specific manifestations of marital infringement. It makes a comparative analysis of general infringement and marital infringement, and classifies marital infringement and several kinds of infringement. Typical marital infringement is discussed in order to better understand what is marital infringement, so as to make a correct judgment on marital infringement in the future and better protect the rights and interests of marital parties.
The second part is about the feasibility and restrictive factors of constructing civil liability for infringement in marriage.This part analyzes the feasibility of constructing civil liability for infringement in marriage in light of the legislative status quo of civil liability system in China,and points out that there are certain theoretical and legal basis for constructing civil liability system for infringement in marriage in China. At the same time, it points out the obstacles that appear in the academic circles and practice or may appear in the process of building the civil liability system of infringement in marriage, and makes a comprehensive analysis of them. It can be seen that it is imperative to establish the civil liability system of infringement in marriage in China.
The third part is the construction of the civil liability system of infringement in marriage.This part firstly expounds the significance of constructing the civil liability system of infringement in marriage,thus affirming that the status of civil liability system of infringement in marriage can not be ignored in legislation,and the establishment of civil liability system of infringement in marriage plays an important role in the perfection of marriage and family legislation. In the end, according to the actual situation of our country, the article puts forward some legislative countermeasures against the possible obstacles mentioned in the second part of this article, which can effectively eliminate the existing problems and play a positive role in constructing the civil liability system of marital infringement.
【學位授予單位】：廣西師范大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D923.9
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