论夫妻人身权利义务的发展和我国《婚姻法》的完善

On Development of Personal Rights and Duties of Spouses and Improvement of China Marriage Law

我国已婚妇女普遍使用自己的姓名。夫妻双方平等的住所决定权的实质是夫妻共同决定。我国《婚姻法》规定夫妻同居义务时,还应规定夫妻同居义务的免除事由。夫妻应当在婚姻共同生活中相互照顾、相互协助。当代英美法上配偶权仅有对外的作用,配偶另一方可利用其提起配偶权损失之诉。我国《婚姻法》不宜用配偶权指称夫妻之间的权利义务,或特指夫妻忠实或性的权利义务。婚姻法应继续倡导"夫妻应当互相忠实",而不是确立"夫妻忠实义务"。对单纯通奸行为的干预,《婚姻法》所表达的克制态度应予尊重。主张夫妻平等的就业权、家庭事务管理权和承认家务劳动价值,避免妇女就业率低于男性、家务劳动负担重于男性的事实导致对妇女贡献的低评价。夫妻对于日常家事可由一方行使法定代理权,以便利日常生活。我国《婚姻法》应当确认夫妻有平等的生育权,并将重点放在行使生育权冲突的解决上。

Married women usually retain their original name in China. Equal right to decide marital home means that spouses make the decision jointly. If the Marriage Law of China provided the conjugal duty, it should set up exemptions of this duty at the same time. Spouses should mutually take care of and support each other in their marriage life. The consortium in modern Anglo-American law system only has external effects, with which the spouse is able to sue for compensation when she/he fails to enjoy the right. It is not proper that the Marriage Law of China adopt marital consortium to refer to the couple＇ s rights and duties or refer to the duty of loyalty specifically. The Marriage Law should advocate the loyalty between couples continuously rather than confirm the duty of loyalty between couples. It deserves respect that the Marriage Law of China holds a constrained intervention towards adultery not involving cohabitation. Equal rights in employment and maintenance of the family as well as recognitions of the value of housework should be asserted to acknowledge women＇ s contribution which is now undervalued due to a lower employment rate and more housework. For daily convenience, the husband or the wife could represent the marital union with regard to the day -to -day needs of the family. The Marriage Law of China should confirm that spouses enjoy equal reproductive right and should focus on the resolution of conflicts occurred when exercising the right.