配偶同居权与性自主权冲突的法律问题研究

Research on the Legal Issues in Conflict between Spouse’s——Right of Cohabitation and Right to Sexual Freedom

随着人权思想的发展,公民的性权利意识逐渐增强,性已脱离婚姻朝着多元化的方向发展。受此影响,传统婚姻制度承担的性爱功能开始弱化,配偶同居权在法律上的意义已变得十分模糊,目前法律对夫妻间因性冲突引发的纠纷尚无明确的处理规则。配偶同居权与性自主权冲突的本质是法律价值上的冲突,解决冲突不仅需要进行价值衡量,以确定权利保护的正当性、优先性,而且应当遵循以下处理原则:禁止权利滥用原则、构建权利位阶原则和个案利益衡量原则。

With the development of ideas on human rights, people＇s awareness of sexual rights is strengthened gradually. Nowadays, sex has been set free from marriage and begins to develop towards diversified directions. Influenced by this, the sex function borne by the traditional marriage system has been weakened, and the legal meaning of spouse＇ s fight of cohabitation has become obscure. So far, there is no clear items in law to solve disputes aroused by sexual conflict between spouses. The essence of the conflict between spouse＇s right of cohabitation and right of sexual freedom is a conflict of legal values. The solution to this conflict is to have a check and balance on both values, so as to define the legitimacy and priority of right protection. The author believes that three principles should be applied to solve this dispute, which are as follows, the principle of no abuse of rights, the principle of rank-setting of rights, and the principle of interests balance and measurements in individual case.