美国医疗预先指示制度研究
发布时间：2018-11-02 11:46
【摘要】：我国已进入老年社会,随着人口老龄化的加剧,生病、失能、死亡的风险加大,而老年人心智的衰退,就需要监护人管理自己的财产和包括医疗决定在内的人身事项。而我国现有的监护制度面临着种种困境,例如监护对象过于狭窄未能涵盖失能老人、监护类型单一且仅限于法定监护、不重视人身监护特别是医疗监护,这些问题只有得到解决才能适应社会的发展。而美国的医疗预先指示制度作为一项典型的意定监护制度则弥补了我国成年监护制度的不足。医疗预先指示制度是指行为人在具有完全行为能力时根据本人的意愿通过设立生前预嘱或委托医疗行为代理人的方式为本人在失能后行使人身监护权。医疗预先指示分为生前预嘱和医疗行为代理。它针对的监护对象广泛,同时是专门针对人身监护中的医疗决定而被立法者创设的,能切实维护被监护人的合法权益。因此引入医疗预先指示制度势在必行。本文旨在通过对美国的医疗预先指示制度进行深入研究,探索美国的成年监护制度,同时尝试构建我国的监护制度特别是意定监护制度,希望能使我国的监护制度更适应社会的发展。 第一部分是介绍美国的医疗预先指示制度根源及概念分类。美国的医疗预先指示制度开始于20世纪70年代,它让人们有了提前表达自己医疗意愿的机会。此制度分为生前预嘱和医疗行为代理,是美国成年意定监护的重要组成部分。此外,该制度着眼于被监护人的人身监护,弥补了此前成年监护只关注财产监护的漏洞。关于医疗预先指示制度的法律已经很健全,经过了30多年的实践也已发展成熟。 第二部分阐述了医疗预先指示制度与美国的成年监护体系。成年监护有狭义和广义之分。狭义的成年监护制度只包括法定监护即由监护人由法院指定。广义的监护则分为法定监护和意定监护,意定监护更尊重本人的自主决定权,允许被监护人在具有完全行为能力时自己指定监护人。这部分就是对美国法定监护和意定监护的探讨。 第三部分是对我国现行监护制度的立法分析和检讨。通过分析我国《民法总则》有关监护的规定,发现我国成年监护制度存在着诸多问题,比如监护对象过于狭窄、监护类型过于单一、重财产监护忽视人身监护。为适应老年社会的到来,监护制度改革势在必行。 最后一部分对我国的成年监护制度的完善提出了建议。通过第一部分对医疗预先指示制度的介绍,已经认识到意定监护、人身监护的重要性。我国需要构建意定监护制度、完善人身监护同时还要加强对监护人的监督。
[Abstract]:With the aggravation of the aging population, the risk of illness, disability and death is increased in China, and the mental decline of the elderly requires guardians to manage their own property and personal matters, including medical decisions. However, the existing guardianship system in our country is faced with various difficulties, such as too narrow the object of guardianship can not cover the disabled old people, the type of guardianship is single and only limited to legal guardianship, and no attention is paid to personal guardianship, especially medical guardianship. These problems can only be solved in order to adapt to the development of society. As a typical voluntary guardianship system, the medical predirection system in the United States makes up for the deficiency of the adult guardianship system in our country. The system of medical predirection refers to the person exercising personal guardianship after his disability through the establishment of living wills or the entrustment of medical behavior agent according to his will when he has complete capacity. Medical preinstruction is divided into living wills and medical behavior agents. It aims at a wide range of guardianship objects and is created by the legislator specifically for medical decisions in personal guardianship, which can safeguard the legal rights and interests of the guardians. Therefore, it is imperative to introduce the system of medical predirection. The purpose of this paper is to explore the adult guardianship system of the United States through the in-depth study of the system of medical pre-instruction in the United States, and to try to construct the guardianship system of our country, especially the system of determined guardianship. Hope to make our country's guardianship system more suitable for the development of society. The first part is to introduce the origin and conceptual classification of the medical predirection system in the United States. The medical predirection system in the United States began in the 1970s, giving people the opportunity to express their medical will in advance. This system, divided into living wills and medical behavior agents, is an important part of adult guardianship in the United States. In addition, the system focuses on guardianship of the person under guardianship, filling the loophole in which adult guardianship focused only on property custody. The law on medical predirection system has been perfect, and has been developed after more than 30 years of practice. The second part expounds the system of medical predirection and American adult guardianship system. Adult guardianship is divided into narrow sense and broad sense. The narrow system of adult guardianship includes only legal guardianship, that is, the guardian is appointed by the court. The broad sense of guardianship is divided into legal guardianship and free guardianship. This part is the legal guardianship of the United States and determined guardianship. The third part is the legislative analysis and review of the current guardianship system in China. By analyzing the regulations of guardianship in the General principles of Civil Law in China, it is found that there are many problems in the adult guardianship system of our country, such as too narrow objects of guardianship, too single type of guardianship and neglect of personal guardianship. In order to adapt to the arrival of the elderly society, the reform of guardianship system is imperative. The last part puts forward some suggestions on the perfection of adult guardianship system in China. Through the introduction of the system of medical predirection in the first part, the importance of free guardianship and personal guardianship has been recognized. Our country needs to construct the system of determined guardianship, perfect personal guardianship and strengthen the supervision of guardians.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923;D971.2
本文编号：2305923
[Abstract]:With the aggravation of the aging population, the risk of illness, disability and death is increased in China, and the mental decline of the elderly requires guardians to manage their own property and personal matters, including medical decisions. However, the existing guardianship system in our country is faced with various difficulties, such as too narrow the object of guardianship can not cover the disabled old people, the type of guardianship is single and only limited to legal guardianship, and no attention is paid to personal guardianship, especially medical guardianship. These problems can only be solved in order to adapt to the development of society. As a typical voluntary guardianship system, the medical predirection system in the United States makes up for the deficiency of the adult guardianship system in our country. The system of medical predirection refers to the person exercising personal guardianship after his disability through the establishment of living wills or the entrustment of medical behavior agent according to his will when he has complete capacity. Medical preinstruction is divided into living wills and medical behavior agents. It aims at a wide range of guardianship objects and is created by the legislator specifically for medical decisions in personal guardianship, which can safeguard the legal rights and interests of the guardians. Therefore, it is imperative to introduce the system of medical predirection. The purpose of this paper is to explore the adult guardianship system of the United States through the in-depth study of the system of medical pre-instruction in the United States, and to try to construct the guardianship system of our country, especially the system of determined guardianship. Hope to make our country's guardianship system more suitable for the development of society. The first part is to introduce the origin and conceptual classification of the medical predirection system in the United States. The medical predirection system in the United States began in the 1970s, giving people the opportunity to express their medical will in advance. This system, divided into living wills and medical behavior agents, is an important part of adult guardianship in the United States. In addition, the system focuses on guardianship of the person under guardianship, filling the loophole in which adult guardianship focused only on property custody. The law on medical predirection system has been perfect, and has been developed after more than 30 years of practice. The second part expounds the system of medical predirection and American adult guardianship system. Adult guardianship is divided into narrow sense and broad sense. The narrow system of adult guardianship includes only legal guardianship, that is, the guardian is appointed by the court. The broad sense of guardianship is divided into legal guardianship and free guardianship. This part is the legal guardianship of the United States and determined guardianship. The third part is the legislative analysis and review of the current guardianship system in China. By analyzing the regulations of guardianship in the General principles of Civil Law in China, it is found that there are many problems in the adult guardianship system of our country, such as too narrow objects of guardianship, too single type of guardianship and neglect of personal guardianship. In order to adapt to the arrival of the elderly society, the reform of guardianship system is imperative. The last part puts forward some suggestions on the perfection of adult guardianship system in China. Through the introduction of the system of medical predirection in the first part, the importance of free guardianship and personal guardianship has been recognized. Our country needs to construct the system of determined guardianship, perfect personal guardianship and strengthen the supervision of guardians.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923;D971.2
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相关期刊论文 前4条
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4 孙也龙;;精神障碍患者的预先指示权与自愿治疗[J];中国心理卫生杂志;2013年04期
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