失独失能老人国家监护制度研究

发布时间：2018-02-10 01:37

本文关键词： 失独老人失能国家监护　出处：《西南大学》2017年硕士论文　论文类型：学位论文

【摘要】：随着老龄化、少子化时代的到来,老年人的监护问题越来越突出,由于我国长期实行计划生育政策,老年人中的特殊群体即失独老人逐渐成为关注的重点。“失独老人”只生育一个子女,步入中老年后,唯一的子女遭遇意外事故死亡,而此时他们当中大多数人已经无法再生育。随着年龄增大,生理功能衰退,判断能力和行为能力逐年下降,特别是处于失能状态后,他们由谁监护就成为一个难题。我国目前的监护制度实质上是将对老年人的照管义务完全交给了家庭,但是,失独老人的产生是履行国家政策所致,他们的情形不同于一般有子女的老年人。而且随着国家二胎政策的出台,失独老人会越发觉得不公平。所以,他们在失能后的人身照顾和财产管理等监护问题需要政府的介入,由政府来保障他们的合法权益。目前法学界对失独老人的研究主要从养老保障、社会救助和社会补偿的角度入手,监护方面还处于空白。当前虽有关于老年监护制度的研究,但主要集中在法定监护和意定监护方面,缺乏国家监护的研究。因此,构建并完善我国的失独失能老人国家监护制度具有非常重要的意义。与老年人监护有关的内容主要规定在《民法通则》和刚刚通过的《民法总则》中,另外在《婚姻法》和《老年人权益保障法》中也涉及到了关于老年人养老的有关内容。在《民法总则》出台以前,我国的立法只将老年精神病人和老年痴呆病人纳入监护的保护体系中,普通老年人的监护利益得不到充分有效保障,更别提失独失能老人了。当时的立法主要存在四个问题:失独失能老人未纳入监护体系的保护范围中、未考虑到这个群体监护主体缺失的特殊情形、忽略人身监护与生存性照料和国家责任缺失。新法的颁布使得老年监护制度得以确立,特别是初步涉及到了老年国家监护的内容,为构建并完善失独失能老人的国家监护制度提供了法律上的支撑。国外在政府承担无行为能力或限制行为能力成年人监护责任方面已经有了比较成熟的经验,通过研究德国、美国和加拿大的相关制度,可以得到很多的启示。构建并完善我国失独失能老人国家监护制度需要从监护原则、监护人、监护对象、监护职责和方法、资金保障及监护监督机制这六个方面来进行。监护原则包括优先性原则、尊重自我决定原则和最大利益原则。监护人应当由民政部门充当,居民委员会、村民委员会不属于政府机构,不应当确立为监护人,只能发挥协助的作用。用尽所有办法还是没有具有监护资格的人的失独失能老人才能纳入国家监护的范围。监护人的职责包括人身和财产方面,但重点是人身方面的监护。监护的资金来源以政府财政为主,但也要注重社会资金的筹集。监护的监督人可以是民政部门内部的监察部门、上级主管部门,也可以是居民委员会、村民委员会,还可以是人民法院。
[Abstract]:With the coming of the aging and minority age, the problem of guardianship of the elderly is becoming more and more prominent. Due to the implementation of the family planning policy in China for a long time, The special group of the elderly, that is, the elderly without independence, has gradually become the focus of attention. The "destitute elderly" has only one child, and after entering the middle and old age, the only child dies in an accident. At this point, most of them are no longer fertile. As they get older, their physiological functions decline, and their ability to judge and act declines year by year, especially after they are disabled. The present guardianship system in our country essentially places the care duty on the elderly in the hands of the family, but the generation of the elderly who have lost their independence is the result of the implementation of national policies. Their situation is different from that of ordinary elderly people with children. Moreover, with the introduction of the national policy on second child, the elderly who have lost independence will feel more and more unfair. Therefore, their personal care and property management after disability need the intervention of the government. The government will protect their legitimate rights and interests. At present, the study of the elderly who have lost their independence in the legal circles mainly starts from the perspectives of old-age security, social assistance and social compensation. Guardianship is still blank. Although there is currently research on the system of guardianship for the elderly, However, the main focus is on statutory guardianship and consensual guardianship, and lack of research on state guardianship. It is of great significance to construct and perfect the national guardianship system for the disabled and disabled in our country. The contents related to the guardianship of the elderly are mainly stipulated in the General principles of Civil Law and the General principles of Civil Law that have just been adopted. In addition, in the Marriage Law and the Law on the Protection of the Rights and interests of the elderly, there are also related contents concerning the elderly's old-age care. Before the introduction of the General principles of the Civil Law, The legislation of our country only brings the elderly mental patients and the senile dementia patients into the protective system of guardianship, and the interests of the ordinary elderly people are not fully and effectively protected. Not to mention the disabled and disabled elderly. There were four main problems in the legislation at that time: the disabled and disabled people were not included in the scope of protection of the guardianship system, and the special situation of the absence of the subject of this group of guardianship was not taken into account. The enactment of the new law makes the establishment of the guardianship system for the elderly, especially the preliminary content of the state guardianship of the elderly. It provides legal support for the establishment and improvement of the national guardianship system for the disabled and disabled elderly. Foreign countries have already had more mature experience in the government undertaking the responsibility of adult guardianship with incapacity or limited capacity. The relevant systems of the United States and Canada can get a lot of enlightenment. To construct and perfect the national guardianship system for disabled and disabled elderly people in our country needs to be based on the principles of guardianship, guardians, objects of guardianship, duties and methods of guardianship. The principle of guardianship includes the principle of priority, respect for the principle of self-determination and the principle of best interests. The guardian should be acted by the civil affairs department, and the residents' committee, The villagers' committee is not a government organization and should not be established as a guardian, Can only play a role of assistance. Exhaustion of all means or lack of guardianship of persons with disabilities and elderly persons can be included in the custody of the State. The duties of the guardian include personal and property aspects, But the focus is on personal guardianship. The funds for guardianship come mainly from government finance, but we should also pay attention to the raising of social funds. The supervisor of guardianship may be the supervisory department within the civil affairs department, and the superior department in charge. It can also be a residents' committee, a villagers' committee, or a people's court.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923;D923.8

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