民法上生育权的表象与本质对我国司法实务案例的解构研究
朱晓喆,徐刚民法上生育权的表象与本质对我国司法实务案例的解构研究
Appearance and Essence of the Right to Procreation in Civil Law
期刊名称：《法学研究》
期刊年份：
作者：朱晓喆,徐刚
单位：华东政法大学副教授;华东政法大学
中文关键词：生育权;生育自主权;人格权;民法体系
英文关键词：right to procreation;right to autonomous procreation;personal right;civil law system
中文摘要：
生育权就其本意而言是宪法赋予公民的基本人权，不宜在具体民事案件裁判中直接适用。我国司法实务中出现的48个典型的生育权民事纠纷大致可分为三类：生殖器官受侵害型、配偶之间生育侵权型、侵害生育自主权型。前两类案件根本无须“生育权”这一概念的介入，即可依据现有民法体系和规则解决所争议的法律问题。在第三类案件中，虽不当出生或不当怀孕的确构成侵害生育自主权，但也无须动用宪法上的生育权，因为民法上的一般人格权或其他人格利益已经包含了生育自主权的具体内涵。
英文摘要：
The last decade has witnessed the increasing arguments about a general conception, i.e., right to procreation, which is often used to describe the claims concerning personal procreative interests in the current civil academies and judicial practices. However, the right to procreation, based on the meaning of itself, belongs to the constitutional rights. It is inappropriate to resort directly to constitutional fundamental rights in concrete civil judgments, for the constitutional law and civil law have different functions and domains. The authors use the caseclassification method to study the judicial practices concerning to the right to procreation. We select 48 typical cases from current judicial practices, which can be classified into the following three categories. The first one is the injury of genital organ, that is, the plaintiff’s genital organ is injured by the defendant and cannot function properly, so the plaintiff sues for damages. The second one is the duty violation between spouses, for example, the wife refuses to procreation or aborts the baby against the husband’s will, so the husband claims that the wife breaches the duty between spouses. The last one is the injury of right to autonomous procreation. In this category of cases, the hospital makes a medical conduct negligently and causes the patient to conceive wrongfully or the baby to be born wrongfully, thus the patient claims that the hospital injures his/her autonomy of procreation.In the first two categories of cases, it is not necessary to introduce the concept of right to procreation, because the solution to these cases can be found in the existing rules of civil law. Only in the last category can the injury of the right to procreation be admitted. However, it is not necessary for this category of cases to resort to the constitutional right to procreation either, because the concept of general personal right or other personal interests can embrace the essence of this concept and therefore these cases can be solved by the existing legal system and theories in civil law.
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