| Same-sex marriage is a product of western countries homosexual fight for equal rights. And the production organization, social organization and life support functions of marriage in the traditional society is irreplaceable. Compared with western countries, the gay community in our country is facing the great pressure from traditional culture and view, and there is no social basis for same sex marriage legislation in our country. This dissertation has gone through the history for legalization of gay marriage and the related issues of basic rights and interests, combed the universal human rights, freedom, equality of value pursuit behind the same-sex marriage, and compared the different legislative models in the country where same-sex marriage is legalized, so as to set some examples for China to solve related social and international private law problems.In addition to the introduction, this dissertation is divided into six chapters, about 190000 words.The first part is introduction. This section introduces the research background and significance of topics. The progress of the research in China and abroad was reviewed. And then the ideas for the study and the arrangement of the content of this thesis are introduced in this section.The first chapter made a summary of the gay and lesbian and same sex marriage, including the concept of gay and lesbian and same sex marriage and the historical evolution, the influence of religion on same sex marriage, and theoretical analysis of same-sex marriage. In the long history of human society, the attitude towards homosexual developed from tolerance to punishment, then to guilt, then to disease, and then to tolerance, finally to legislation. The same-sex marriage legislation in different countries around the world are diversification. In this chapter, the western gay theory:the essentialism, the constructivism, and the "queer theory", which subverts the gender based marriage, are analyzed. The deep layers of human consciousness are explored to seek the possibility of gay culture as a political symbol and to reveal the different attitude of the insiders (gay) and outsiders (straight) towards homosexuality.The second chapter illustrates the constitutionality of same-sex marriage. This chapter analyzes the constitutional bases of the legal recognition of gay marriage. The basic rights of gay groups are concluded. The constitutionality of the gay marriage is found out from the debate on constitutional issues of same-sex marriage in the countries, where same-sex marriage have already legally accepted. And at the same time, the viewpoints inside the countries, where the gay marriages are prohibited, are also analyzed. The so-called moral gliding theory against the gay marriage is discriminated. From the debate of the majority and minority, we conclude that the gays should have equal constitutional basic rights as other citizens. If we would like to exclude same sex marriage, we should base on the constitution or laws, rather than religious, moral, or traditional culture. Depriving the marriage rights of other people without legal basis is unconstitutional. Same sex marriage and heterosexual marriage should be equally protected by the constitution.The third chapter carries on the comparison to the legal status of same sex marriage. The primary characteristic of same-sex marriage is:the marriage people is very particular; the marriage forms is diversity; the purpose is quite simple; this marriage does not have the traditional family function to have children. The statuses in both countries which do and do not recognize the same-sex marriage legislation are analyzed in this chapter. The present situation of the same-sex marriage legislation in some typical countries of the two major legal systems, i.e. continental law system and Anglo-American law system, are introduced. The opinion for same sex marriage legislation in the Chinese mainland, HongKong, Macao, and Taiwan are also discussed respectively. In this chapter, the same-sex marriage legislative mode was divided into registered partner, mutual contract, family partner (partners) legislation pattern and sporadic regulation pattern, etc. The exchange of the legislation patterns under different social conditions and problems existing in the legislation are also analyzes.The fourth chapter is about the comparison of the rights and obligations in gay marriage relations. Personal relationship and property relation are the whole content of the relationship of husband and wife. The academic people in our country usually divide the personal relationship into personality relationship and identity relationship. Most of the states, where same-sex marriage is legislative approved, announce that the personality right between same-sex couples, same sex marriage couples and heterosexual marriage couples are equal, only a few countries with no clear statement. The cohabitation right, the faithful obligations in chastity, the right in decision of the residence, and the right of family daily affairs agent between same sex marriage and heterosexual marriage are basically identical. In terms of identity right, in addition to same-sex marriage, registered partnership system is a new system of civil marriage, which is almost equal to the traditional marriage system. The legal rights of the same sex couples obtain through partnership registration or through same sex marriage are basically the same, except a slightly difference on the adoption of children. In terms of property rights, almost all the nations, where the same-sex marriage is legally approved, provide the same-sex couples the same scope of protection as heterosexual couples. The countries, where half-or quasi-marrige is legally approved, gives the civil partners and heterosexual marriage partner the same or most of the rights, such as the property rights, inheritance, family homes and daily housework agency, insurance benefits, adoption and guardianship, social security, litigation right, right to know, equal employment rights, etc. In the nations, where allow same-sex couples to adopt children, the adoptive parents and adopted children have the right to inheritance between each other.The fifth chapter mainly discusses the issue of the private international law of the gay marriage. With the prevailing of same-sex marriage legislation in the world, the legal conflict related to gay marriage is increasing. How to decide the applicable law and how to solve the related civil law problems are the problems must be treat in the legal practice. First part of this chapter is:same-sex marriages can be set up by referring to the governing law of the contract, the law applicable to marriage, or enact special rules. In addition, global flows of same-sex couples can also lead to changes in the individual rights and the family relationship. The second part of this chapter discusses and analyzes the attitude of foreign countries towards the judicial recognition of same-sex marriage: the recognition of same-sex marriage, recognition of civil unions, or does not recognition, respectively. In addition, in the area of the joint adoption, surrogacy, and medical assistance, the European judicial philosophy has provided us with a better template. In addition, in the area of the joint adoption, surrogacy and medical assistance, the European judicial philosophy has provided us with a better template.The last chapter is the conclusion part, which discusses the necessity and feasibility of adjustment of Chinese legislation for foreign same sex marriage including:modifying the traditional marriage pattern; draw lessons from foreign system of civil union; adding the relevant private international law norms or relevant judicial explanation in The applicable foreign-related civil law of the People's Republic of China; careful using the principle of reservation of public order; setting up a same-sex partner registration system. Refer to the legislation experience of the foreign countries and formulate the legal norms of same-sex marriage and family conforming to China. |
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