我国老年人意定监护合同探究
发布时间:2018-08-21 08:30
【摘要】:老年人意定监护合同是老年人意定监护的核心内容及实现形式,指有意思能力的老年人依自己意愿选任监护人,并以将来自身监护事务的委托为内容,授予监护人一定代理权的委托监护合同。意定监护合同实属委托合同,但本质上又有其特殊性,不能为一般委托合同或我国民法相关制度所替代。我国现行《老年人权益保障法》第26条以原则性规定引入老年人意定监护制度,是对我国监护制度理念的重大变革。然其规定过于原则,缺乏具体规定,我国意定监护制度如何落地成为现实性问题。为此,建议以委托合同为蓝本,设计规范化、典型化意定监护合同。意定监护合同适用主体应主要考虑是否具有签订该合同之意思能力,突破现行法对老年人年龄标准、行为能力标准限制,扩大其范围。监护人主体多元化,建议加以区分以设置不同资格限制,规定不同的权利、义务。同时,鉴于我国监护监督之空白,合同内容可约定监护监督,建立私力监督与公力监督相结合的监督机制。合同订立、生效、终止等无须突破我国合同法规制,但应设置严格程序及必要限制。坚持意定监护合同优先适用原则以及必要性和补充性原则等,确保意定监护制度有效适用,维护老年人自由决定权。
[Abstract]:The contract of voluntary guardianship for the elderly is the core content and the form of realization of the guardianship of the elderly. It means that the old people with interesting abilities choose their guardians according to their own wishes, and take the entrustment of their own guardianship affairs as the content in the future. A contract of entrustment of guardianship granted to a guardian with certain power of attorney. The contractual guardianship contract is a entrustment contract, but it has its particularity in nature and cannot be replaced by the general entrustment contract or the relevant civil law system of our country. Article 26 of the present Law on the Protection of the Rights and interests of the elderly in China, which introduces the system of guardianship of the elderly in principle, is a major change in the concept of the guardianship system in our country. However its stipulation is too principle, lacks the concrete stipulation, our country decides the guardianship system how to fall to the ground becomes the realistic question. Therefore, it is suggested that the contract of entrustment should be based on the design of standardization and typicalization of the contract of guardianship. The main body of the contract should consider whether or not it has the ability to sign the contract, break through the age standard of the old people and limit the standard of behavior ability in the current law, and expand its scope. The main body of guardian is diversified, it is suggested to distinguish to set different qualification limits and stipulate different rights and obligations. At the same time, in view of the blank of guardianship supervision in our country, the contents of the contract can stipulate guardianship supervision, and establish the supervision mechanism which combines private supervision with public supervision. There is no need to break through the regulation of contract law, but strict procedures and necessary restrictions should be set. Insist on the principle of preferential application, necessity and supplement of the free guardianship contract, ensure the effective application of the free guardianship system and safeguard the free decision of the elderly.
【学位授予单位】:烟台大学
【学位级别】:硕士
【学位授予年份】:2016
【分类号】:D923
,
本文编号:2195141
[Abstract]:The contract of voluntary guardianship for the elderly is the core content and the form of realization of the guardianship of the elderly. It means that the old people with interesting abilities choose their guardians according to their own wishes, and take the entrustment of their own guardianship affairs as the content in the future. A contract of entrustment of guardianship granted to a guardian with certain power of attorney. The contractual guardianship contract is a entrustment contract, but it has its particularity in nature and cannot be replaced by the general entrustment contract or the relevant civil law system of our country. Article 26 of the present Law on the Protection of the Rights and interests of the elderly in China, which introduces the system of guardianship of the elderly in principle, is a major change in the concept of the guardianship system in our country. However its stipulation is too principle, lacks the concrete stipulation, our country decides the guardianship system how to fall to the ground becomes the realistic question. Therefore, it is suggested that the contract of entrustment should be based on the design of standardization and typicalization of the contract of guardianship. The main body of the contract should consider whether or not it has the ability to sign the contract, break through the age standard of the old people and limit the standard of behavior ability in the current law, and expand its scope. The main body of guardian is diversified, it is suggested to distinguish to set different qualification limits and stipulate different rights and obligations. At the same time, in view of the blank of guardianship supervision in our country, the contents of the contract can stipulate guardianship supervision, and establish the supervision mechanism which combines private supervision with public supervision. There is no need to break through the regulation of contract law, but strict procedures and necessary restrictions should be set. Insist on the principle of preferential application, necessity and supplement of the free guardianship contract, ensure the effective application of the free guardianship system and safeguard the free decision of the elderly.
【学位授予单位】:烟台大学
【学位级别】:硕士
【学位授予年份】:2016
【分类号】:D923
,
本文编号:2195141
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