配偶權(quán)與隱私權(quán)沖突問題研究
發(fā)布時(shí)間：2019-05-16 19:51
【摘要】： 配偶權(quán)與隱私權(quán)的沖突往往發(fā)生于無過錯(cuò)配偶一方對其配偶的婚外戀捉奸過程中。之所以會(huì)發(fā)生這樣的沖突,主要的原因就在于配偶權(quán)的行使方式以及無過錯(cuò)配偶方為維護(hù)自己的配偶權(quán)益而取得證據(jù)的方式上。我國新婚姻法規(guī)定夫妻之間有互相忠實(shí)的義務(wù),忠實(shí)義務(wù)是配偶權(quán)的一項(xiàng)重要內(nèi)容,而當(dāng)配偶一方發(fā)生婚外戀時(shí),則毫無疑問地違背了其對配偶的忠實(shí)義務(wù)。而另一方為了維護(hù)自己的配偶權(quán),往往會(huì)采取一定的方式去獲取證據(jù),而在這個(gè)取得證據(jù)的過程中就極有可能會(huì)發(fā)生隱私權(quán)與配偶權(quán)的沖突。 配偶權(quán)與隱私權(quán)的沖突問題導(dǎo)源于現(xiàn)實(shí)生活中無過錯(cuò)配偶一方為了維護(hù)自己的合法權(quán)益而采取一些諸如查詢電話記錄、翻看日記、跟蹤拍錄等“捉奸”行為所獲得的證據(jù)在法庭上是否合法有效的爭議問題,根據(jù)我國現(xiàn)有的證據(jù)法(及其解釋)通過這樣的方式所取得的證據(jù)是無效的,但司法實(shí)踐中已有法官突破了這個(gè)規(guī)定,對這樣的證據(jù)予以采納。實(shí)際上,由于婚外戀行為的隱蔽性,要求無過錯(cuò)配偶一方只能采取“正大光明”的方式去取得證據(jù)來維護(hù)自己的合法配偶權(quán)是不現(xiàn)實(shí)的。 證據(jù)的效力問題乃是個(gè)程序法問題,筆者本篇文章并不是要討論證據(jù)的效力問題,本文主要還是從實(shí)體法的角度對配偶權(quán)與隱私權(quán)的沖突與平衡問題進(jìn)行探討。 本文第一章主要論述了配偶權(quán)與隱私權(quán)的權(quán)利范圍及對其的侵權(quán)構(gòu)成以及對目前理論界還有爭議的婚外戀能否主張隱私權(quán)的問題進(jìn)行了探討。只有明確了權(quán)利的界限,才能更好地對侵權(quán)行為進(jìn)行認(rèn)定,而對侵犯配偶權(quán)與隱私權(quán)行為的認(rèn)定,則有助于我們探討配偶權(quán)與隱私權(quán)之間的沖突問題。本章第一節(jié)從配偶權(quán)的概念出發(fā),闡述丁配偶權(quán)的性質(zhì)、特征及其范圍,并對侵犯配偶權(quán)的行為作了詳細(xì)的分析,指出侵犯配偶權(quán)的行為乃屬于一般侵權(quán)行為,必須符合一般侵權(quán)行為的構(gòu)成要件,即違法行為、損害后果、違法行為與損害后果的因果關(guān)系以及行為人的主觀過錯(cuò)四個(gè)要件。第二節(jié)主要闡述了隱私的范圍、隱私權(quán)的界限及對其侵權(quán)的構(gòu)成,根據(jù)民法的基本原理,侵犯隱私權(quán)的行為也屬于一般侵權(quán)行為。第三節(jié)分別從道德和法律的角度深入分析了婚外戀行為的性質(zhì),得出了婚外戀雖然是一種違背道德和倫理的行為但卻可以主張隱私權(quán)的結(jié)論。 第二章從現(xiàn)實(shí)生活的疑難案例出發(fā),導(dǎo)引出對權(quán)利沖突問題的法理學(xué)思考。本章第二節(jié)主要對權(quán)利沖突現(xiàn)象的原因進(jìn)行了比較全面的分析,指出權(quán)利沖突產(chǎn)生的原因主要有權(quán)利設(shè)定的不和諧、權(quán)利本身界限的模糊性、人天性中的擴(kuò)張本能、新生權(quán)利的出現(xiàn)與原有權(quán)利的消失、資源的有限性等原因,并在此基礎(chǔ)上詳細(xì)分析了隱私權(quán)沖突現(xiàn)象的主要原因,隨后,對權(quán)利沖突的本質(zhì)進(jìn)行了剖析,指出權(quán)利沖突問題實(shí)質(zhì)上乃是利益的沖突與價(jià)值觀的沖突問題。第三節(jié)分別論述了配偶權(quán)忠實(shí)義務(wù)和隱私權(quán)的法律價(jià)值,指出配偶權(quán)忠實(shí)義務(wù)主要代表了人類婚姻家庭關(guān)系中的正義價(jià)值,而對隱私權(quán)的保護(hù)則維護(hù)了個(gè)人的自由、社會(huì)的秩序和人的尊嚴(yán)的價(jià)值。 權(quán)利沖突的解決途徑主要有立法和司法兩種方式。但無論是立法者在權(quán)利沖突發(fā)生之前對權(quán)利進(jìn)行配置,還是法官在權(quán)利沖突產(chǎn)生之后運(yùn)用自由裁量權(quán)來解決沖突,筆者認(rèn)為都應(yīng)該從以下兩方面來平衡兩者之間的沖突,一是從利益衡量的角度來考慮,二是從公序良俗的視角去分析,第三章主要是從這兩個(gè)方面來分析配偶權(quán)與隱私權(quán)之間的沖突與平衡,最后得出應(yīng)該優(yōu)先保護(hù)配偶權(quán)的結(jié)論,但這種保護(hù)也是有限制的,即為了維護(hù)自己配偶權(quán)權(quán)益的配偶一方,只能用所獲得的證據(jù)來維護(hù)自己的正當(dāng)權(quán)益,而不能將其任意散播,否則就構(gòu)成侵犯他人的隱私權(quán)。
[Abstract]:The conflict between the right of the spouse and the right to privacy often occurs in the process of the spouse's extramarital affair with the spouse. The main reason for such a conflict lies in the manner in which the right of the spouse is exercised and the manner in which the no-fault partner obtains the evidence for the maintenance of its own spouse's rights and interests. The new marriage law of our country stipulates that the husband and wife have the obligation to be faithful to each other, the duty of the faithful is an important part of the right of the spouse, and when the spouse of the spouse has an affair, there is no doubt that it is in breach of its faithful duty to the spouse. In order to maintain the right of spouse, the other party often takes a certain way to get the evidence, and in the process of obtaining the evidence, there may be a conflict between the right to privacy and the right of the spouse. The conflict between the right of the spouse and the right to privacy is derived from the fact that the failure of the spouse in the real life to maintain the legitimate rights and interests of the spouse and to take some evidence, such as the inquiry of telephone records, the reading of the diary, and the tracking of the "traitors", is legally and effectively in the court. The question is that the evidence obtained in such a way is null and void, in accordance with the existing evidence law (and its interpretation) in our country, but in the judicial practice, the judge has broken through the provision and In fact, because of the hidden nature of the affair of the extramarital affair, it is required that the spouse of the fault-free spouse can only take the "bright and bright" to obtain the evidence to maintain the right of the legitimate spouse. The validity of the evidence is a procedural law. The author of this article is not the question of the validity of the evidence. The article mainly discusses the conflict and the balance between the right of the spouse and the right of privacy from the perspective of the substantive law. The first chapter of this article mainly discusses the scope of the right of the spouse and the right to privacy, the composition of the infringement of the right to privacy and the possibility of the right to privacy in the present theory. The issue of the right of the spouse and the privacy of the right to privacy can be better recognized, and the right of the spouse and the privacy of the right to privacy can be found to be helpful for us to explore the right of the spouse and the privacy. The first section of this chapter, from the concept of the right of the spouse, expounds the nature, character and scope of the right of the spouse, and analyses the behavior of the right of the spouse, and points out that the violation of the right of the spouse is a general tort and must be in accordance with the general invasion. The constitutive elements of the right act, namely, the illegal act, the consequences of the damage, the cause and effect of the illegal act and the damage, and the actor's The second section mainly expounds the scope of the privacy, the limit of the right of privacy and the composition of the infringement, and according to the basic principle of the civil law, the violation of the right to privacy also In the third section, the article analyzes the nature of extramarital love from the angle of morality and law, and concludes that the extramarital love is a kind of behavior that is contrary to the morality and the ethics, but it can The second chapter, from the difficult case of real life, guides the right to privacy. The second section of this chapter mainly analyses the causes of the conflict of rights, and points out that the causes of the conflict of rights mainly have the inharmony of the rights, the fuzziness of the limit of the right itself, the expansion instinct in the human nature, the new right. This paper analyzes the main causes of the phenomenon of the right to privacy, and then analyzes the essence of the right conflict, and points out that the problem of right conflict is of interest. The third section discusses the legal value of the faithful duty of the spouse and the right of privacy, and points out that the faithful duty of the spouse is the justice value in the relationship between the family and the family, while the protection of the right to privacy has maintained the freedom and the society of the individual. The value of order and human dignity. Resolution of the conflict of rights There are two ways of legislation and justice. However, whether the legislator has the right to configure the right before the right conflict occurs, or the judge uses the discretion to solve the conflict before the conflict occurs, the author believes that the conflict between the two aspects should be balanced from the following two aspects The second part is to analyze the conflict and balance between the right of the spouse and the right of privacy, and finally, we should give priority to the protection of the right of the spouse. However, this protection is also limited, that is, in order to protect the spouse of the rights and interests of their spouses, it is only possible to use the evidence obtained to safeguard the legitimate rights and interests of their spouses and not to spread it arbitrarily
【學(xué)位授予單位】：復(fù)旦大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2008
【分類號(hào)】：D913
本文編號(hào)：2478519
[Abstract]:The conflict between the right of the spouse and the right to privacy often occurs in the process of the spouse's extramarital affair with the spouse. The main reason for such a conflict lies in the manner in which the right of the spouse is exercised and the manner in which the no-fault partner obtains the evidence for the maintenance of its own spouse's rights and interests. The new marriage law of our country stipulates that the husband and wife have the obligation to be faithful to each other, the duty of the faithful is an important part of the right of the spouse, and when the spouse of the spouse has an affair, there is no doubt that it is in breach of its faithful duty to the spouse. In order to maintain the right of spouse, the other party often takes a certain way to get the evidence, and in the process of obtaining the evidence, there may be a conflict between the right to privacy and the right of the spouse. The conflict between the right of the spouse and the right to privacy is derived from the fact that the failure of the spouse in the real life to maintain the legitimate rights and interests of the spouse and to take some evidence, such as the inquiry of telephone records, the reading of the diary, and the tracking of the "traitors", is legally and effectively in the court. The question is that the evidence obtained in such a way is null and void, in accordance with the existing evidence law (and its interpretation) in our country, but in the judicial practice, the judge has broken through the provision and In fact, because of the hidden nature of the affair of the extramarital affair, it is required that the spouse of the fault-free spouse can only take the "bright and bright" to obtain the evidence to maintain the right of the legitimate spouse. The validity of the evidence is a procedural law. The author of this article is not the question of the validity of the evidence. The article mainly discusses the conflict and the balance between the right of the spouse and the right of privacy from the perspective of the substantive law. The first chapter of this article mainly discusses the scope of the right of the spouse and the right to privacy, the composition of the infringement of the right to privacy and the possibility of the right to privacy in the present theory. The issue of the right of the spouse and the privacy of the right to privacy can be better recognized, and the right of the spouse and the privacy of the right to privacy can be found to be helpful for us to explore the right of the spouse and the privacy. The first section of this chapter, from the concept of the right of the spouse, expounds the nature, character and scope of the right of the spouse, and analyses the behavior of the right of the spouse, and points out that the violation of the right of the spouse is a general tort and must be in accordance with the general invasion. The constitutive elements of the right act, namely, the illegal act, the consequences of the damage, the cause and effect of the illegal act and the damage, and the actor's The second section mainly expounds the scope of the privacy, the limit of the right of privacy and the composition of the infringement, and according to the basic principle of the civil law, the violation of the right to privacy also In the third section, the article analyzes the nature of extramarital love from the angle of morality and law, and concludes that the extramarital love is a kind of behavior that is contrary to the morality and the ethics, but it can The second chapter, from the difficult case of real life, guides the right to privacy. The second section of this chapter mainly analyses the causes of the conflict of rights, and points out that the causes of the conflict of rights mainly have the inharmony of the rights, the fuzziness of the limit of the right itself, the expansion instinct in the human nature, the new right. This paper analyzes the main causes of the phenomenon of the right to privacy, and then analyzes the essence of the right conflict, and points out that the problem of right conflict is of interest. The third section discusses the legal value of the faithful duty of the spouse and the right of privacy, and points out that the faithful duty of the spouse is the justice value in the relationship between the family and the family, while the protection of the right to privacy has maintained the freedom and the society of the individual. The value of order and human dignity. Resolution of the conflict of rights There are two ways of legislation and justice. However, whether the legislator has the right to configure the right before the right conflict occurs, or the judge uses the discretion to solve the conflict before the conflict occurs, the author believes that the conflict between the two aspects should be balanced from the following two aspects The second part is to analyze the conflict and balance between the right of the spouse and the right of privacy, and finally, we should give priority to the protection of the right of the spouse. However, this protection is also limited, that is, in order to protect the spouse of the rights and interests of their spouses, it is only possible to use the evidence obtained to safeguard the legitimate rights and interests of their spouses and not to spread it arbitrarily
【學(xué)位授予單位】：復(fù)旦大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2008
【分類號(hào)】：D913
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前2條
1 王睿冰;論婚內(nèi)隱私權(quán)的法律保護(hù)[D];揚(yáng)州大學(xué);2010年
2 張光楠;試論配偶權(quán)[D];吉林財(cái)經(jīng)大學(xué);2012年
，本文編號(hào)：2478519
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