【作者】 王剑辉；

【导师】 那力；

【作者基本信息】 吉林大学 ， 法律， 2007， 硕士

【摘要】 随着社会生活各领域的急剧变迁,人们的情感生活日趋丰富化,价值观念日趋多元化,生活方式日趋自主化,同性恋权利运动和人权运动逐渐在一些国家和地区得到不同程度地开展。目前在中国同性恋的存在已是不可争议的事实,从法学的角度对同性婚恋的研究是非常重要的,在世界部分国家已经把同性恋乃至同性婚姻都合法化的今天,中国也有必要对此进行关注,切实的保护好这一相对数量稀少但绝对数量庞大的特殊群体的合法权益。但是我国目前对同性恋者的权益保护及同性婚姻等方面的理论研究还不够深入,现行法律还基本上没有对其做出任何的规范。正是基于这个现状,本文试图首先从介绍同性恋的基本知识着手,加强人们对同性恋的理性认识;进而阐述同性婚姻的合法性基础,并通过对国外同性婚姻立法进行比较研究的基础上,提出自己的一些看法和建议,以期引起我国学界对这些问题的关注及对这些问题进行更广泛、深入的研究,最终找到一条适合中国现状的解决之路。更多还原

【Abstract】 “A marriage is conducted by a man and a woman”has been a default rule of human history. But nowadays, with the gradual implementation of Homosexuality depathologicalization in the globe, and further development of the Homosexual Liberation Movement, people’s attitude to homosexual becomes more tolerant. In some countries and districts, same-sex partners can conduct marriage and enjoy some marital and familial rights. It is not doubt that homosexuality exists in China and it is very important to study homosexuality and homosexual marriage from the legal point. Today since some countries in the world have legalized homosexuality and even homosexual marriage, China needs to show its concern about these issue. Mainly adopting the comparative, analytical and inductive research methods, the author hopes to summarize the developing trend of same-sex marriage legislative mode through international, regional and country-by-country comparison, and to bring forward practical suggestions for our country’s countermeasures to same-sex marriage based on existing domestic situations.The thesis consists of four parts as follows.In the first part, this thesis introduces the basic situation of homosexuality. Homosexual phenomenon exists universally in the world from ancient times to the present, which is the reason that we study the homosexual phenomenon. Homosexuality is not a kind of morbid state, but the life styles of a few people. There are two kinds of theories about the homosexual cause of formation at present, which are“inborn theory”and“acquired theory”. No matter which kind of theories, the rights of homosexual person cannot be deprived. The emotions between homosexual companions are the same as the heterosexual couple. The homosexual companions have aspiration of the family too. They hope to get married legally like heterosexuality person, enjoy the same right as heterosexual couple, and be admitted by law. Such a demand is rational, and we should treat the homosexual companion’s demand properly. Because a civilized society should allow individuals to have the right to choose one’s own life style and we should hold a kind of tolerant and respected attitude to the homosexual companions who live together because of love. Now many countries and districts have acknowledged the legitimacy of homosexual marriage.The second part proves the legitimacy of homosexual marriage. First, heterosexual marriage is not to be a natural prerequisite, and marriage is not solely for the purpose of reproduction. The essence of marriage is individual’s pursuit and satisfaction to material, emotion, physiology, etc, but not for bearing offspring and any other reasons. The purpose of marriage is to pursue happiness, but not to give birth to the child. The marriage of homosexual person is respectable because it is on the basis of emotion. As a matter of fact, homosexual marriage is a choice to the subject sex, and the subject of the marriage is no longer confined to male and female,which liberates the freedom of marriage on the choice to the sex of subject. Second, Same-sex marriage will not necessarily affect their children grow. Homosexuals are as happy as heterosexuals and they share the same faith and positive attitude on raising children. Studies have also shown that parents do not have sexual relations with their children’s sexual orientation. Finally, the function of the law is not to defend the so-called traditional morals, but standardize the civil order from the relationship between law and morals. The idea is unrealistic hoping to ensure the marriage from breaking. The law cannot create happy marriage.The third part makes a brief introduction of the same-sex marriage legislative mode of main counties and districts in the world from the substantive aspect, in order to sum up the experience and lessons to improve our marriage legislation. To same-sex marriage, face it or not? Answers are already available in many countries and regions. Denmark was the first country in the world to adopt the“domestic partnership law”, which gave same-sex couples the same rights as heterosexual partners. France became the first country to adopt same-sex couples in the Catholic countries. Although in France some social security policies had been applied to same-sex couples, they still have not achieved the legalization of same-sex marriage. And the situation is the same in Germany. The Netherlands was the first country to allow same-sex couples to enter into marriage, and Belgium was the second, Spain was the third. But it was seems that Spain went more further than Netherlands and Belgium by giving same-sex partners the right to adopt children. The legal system of same-sex partners has achieved a certain degree of development in America and Canada by the influence of European countries.Through inspecting the legal system of each country, we can classify them into four kinds: fragmentary control mode, cohabitant legislative mode, registered partnership legislative mode and same-sex marriage legislative mode. And the registered partnership legislative mode is used by the majority of countries.The forth part starts with the debate of our legislation on same-sex marriage and draws on the experience of many countries, as well as China’s Taiwan region, suggests controlling the same-sex partner’s statue, rights and obligations to some extent. In my opinion this can be achieved through a three-stage: first, formulate the protect law in the rights of homosexuals. Second, formulate administrative rules and regulations for protecting the rights of same-sex partners. With completing the first two steps, we can proceed with the final stage, which put the Homosexual marriage into the Marriage Law. We must realize that this three-stage is a complex process. We should do it step by step with a rigorous and positive attitude.更多还原