吸毒人员监护权的认定与变更
发布时间：2018-07-16 23:14
【摘要】：随着我国吸毒人员数量的与日俱增,其未成年子女处于监护缺失的情况也越来越严重,这对他们的成长是非常不利的。吸毒人员对于其未成年子女成长所带来的负面影响非常之大,但作为未成年子女的父母又不适宜一概否定其监护人资格。然而现行法律缺乏对吸毒人员作为监护人的资格和监护责任的明确认定,同时也缺乏有效的机制去及时挽救已经处于实际监护缺失的未成年子女。所以要处理吸毒人员监护权问题,必须在充分了解监护权概念的基础上,将吸毒人员作为监护人视为一种单独的模式,引入“未成年子女利益最大”作为处理吸毒人员监护权问题的主要原则,并以《民法通则》的监护权相关部分、《未成年人保护法》和《婚姻法》中监护权相关条款,以及最高人民法院《关于贯彻执行中华人民共和国民法通则若干问题的意见》作为基本的法律依据,着重分析吸毒人员监护权的转移和认定问题。由于历史和传统的原因,我国现有监护权法律还带有浓厚的私法性质,在监护人资格的认定上仍然以身份关系为主要依据和顺位,本文认为对于吸毒人员监护人资格的认定应当根据实际情况出发,针对吸毒人员吸毒行为对其未成年子女可能造成的影响为判断依据做出裁决。同时应对吸毒人员所必须履行的监护责任明确界定。如果吸毒人员一人履行监护职责的,必须有能力承担所规定的所有责任。如因吸毒造成一部分责任无力履行的,应首先考虑与其他符合监护人资格的人共同行使监护权或将无力承担的部分监护权委托给他人,否则才视其为丧失监护人资格。对于监护人资格的认定,有纠纷的最终都应该通过法院裁决。除了法律已经规定的可提起监护权变更诉讼的人员以外,未成年子女也应当符合提起诉讼的主体资格。且在没有适合代理人的情况下,法院应当从其他符合监护人资格的人中指定合适的代理人。在未成年子女监护属于实际缺失的情况下,应当及早采取合法的手段和途径,通过将监护权转移给其他有监护资格的人或机构,来保护未成年子女的监护权益。而监护权转移制度的有效落实离不开国家公权力的强制执行力和介入干预。也可以尝试增设专门的组织来承担这一社会职责。针对吸毒人员的特殊情况,还应当充分整合社会各类资源,为吸毒人员恢复监护人资格提供支持和帮助。总之,只有在立法上明确认定监护人资格、监护责任、并建立起有效的监护权转移制度,才能从根本上解决吸毒人员未成年子女监护缺失的问题,确保他们的健康成长。
[Abstract]:With the increasing number of drug addicts in our country, their minor children are becoming more and more serious in the absence of guardianship, which is very bad for their growth. The negative effects of drug addicts on the growth of their minor children are very large, but their parents, as minor children, are not suitable to deny their guardians in a single way. However, the current law lacks a clear identification of the eligibility and responsibility of the drug addicts as guardians, but also lacks effective mechanisms to save the young children who have been in the absence of actual monitoring. Therefore, to deal with the problem of guardianship of drug addicts, the drug addicts must be fully understood on the basis of the concept of guardianship. As a guardian, the member is regarded as a separate model, introducing the principal principle of "the maximum of the interests of the minor children" as the custody of the drug addicts, and the relevant provisions of the guardianship of the general rules of the civil law, the related provisions of the protection of minors and the guardianship in the marriage law, and the Supreme People's Court on the implementation of the Chinese people. The opinions of the general principles of the civil law of the civil Republic are the basic legal basis, focusing on the analysis of the transfer and identification of the guardianship of drug addicts. Due to historical and traditional reasons, the existing guardianship laws in our country still have a strong private law nature, and the identity relationship is still the main basis and the cis position in the identification of the guardian's qualification. This article holds that the identification of the qualification of the guardian of drug addicts should be based on the actual conditions and the possible impact of drug addicts on their minor children for judgment. At the same time, the responsibility for the guardianship that the drug addicts must perform is clearly defined. If a drug addict performs the duties of guardianship, It is necessary to be able to bear all the responsibilities specified. If a part of the responsibility is unable to be carried out because of drug abuse, it should first consider the joint exercise of guardianship with other persons who are in conformity with the qualifications of the guardian or the part of the guardianship that they can not afford to others, otherwise they shall be deemed to be a loss of guardianship. In the end, the court's decision should be passed. In addition to the law already provided for the alteration of the guardianship litigant, the minor children should be eligible for the subject of the proceedings. And in the absence of a suitable agent, the court shall appoint the appropriate agent from other persons who are eligible for the guardian. When the female guardianship is actually missing, the legal means and ways should be taken early to protect the guardianship rights of the minor children by transferring the guardianship to other persons or institutions with guardianship, and the effective implementation of the transfer system of guardianship is inseparable from the compulsory enforcement force and intervention intervention of the national public power. In view of the special circumstances of drug addicts, we should fully integrate all kinds of social resources to provide support and help for drug addicts to restore the qualifications of their guardians. In a word, only in legislation, the qualification of the guardians, the responsibility of guardianship, and the establishment of an effective custody transfer system can be established. Fundamentally solve the problem of the absence of guardianship of underage children and ensure their healthy growth.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923
本文编号：2127992
[Abstract]:With the increasing number of drug addicts in our country, their minor children are becoming more and more serious in the absence of guardianship, which is very bad for their growth. The negative effects of drug addicts on the growth of their minor children are very large, but their parents, as minor children, are not suitable to deny their guardians in a single way. However, the current law lacks a clear identification of the eligibility and responsibility of the drug addicts as guardians, but also lacks effective mechanisms to save the young children who have been in the absence of actual monitoring. Therefore, to deal with the problem of guardianship of drug addicts, the drug addicts must be fully understood on the basis of the concept of guardianship. As a guardian, the member is regarded as a separate model, introducing the principal principle of "the maximum of the interests of the minor children" as the custody of the drug addicts, and the relevant provisions of the guardianship of the general rules of the civil law, the related provisions of the protection of minors and the guardianship in the marriage law, and the Supreme People's Court on the implementation of the Chinese people. The opinions of the general principles of the civil law of the civil Republic are the basic legal basis, focusing on the analysis of the transfer and identification of the guardianship of drug addicts. Due to historical and traditional reasons, the existing guardianship laws in our country still have a strong private law nature, and the identity relationship is still the main basis and the cis position in the identification of the guardian's qualification. This article holds that the identification of the qualification of the guardian of drug addicts should be based on the actual conditions and the possible impact of drug addicts on their minor children for judgment. At the same time, the responsibility for the guardianship that the drug addicts must perform is clearly defined. If a drug addict performs the duties of guardianship, It is necessary to be able to bear all the responsibilities specified. If a part of the responsibility is unable to be carried out because of drug abuse, it should first consider the joint exercise of guardianship with other persons who are in conformity with the qualifications of the guardian or the part of the guardianship that they can not afford to others, otherwise they shall be deemed to be a loss of guardianship. In the end, the court's decision should be passed. In addition to the law already provided for the alteration of the guardianship litigant, the minor children should be eligible for the subject of the proceedings. And in the absence of a suitable agent, the court shall appoint the appropriate agent from other persons who are eligible for the guardian. When the female guardianship is actually missing, the legal means and ways should be taken early to protect the guardianship rights of the minor children by transferring the guardianship to other persons or institutions with guardianship, and the effective implementation of the transfer system of guardianship is inseparable from the compulsory enforcement force and intervention intervention of the national public power. In view of the special circumstances of drug addicts, we should fully integrate all kinds of social resources to provide support and help for drug addicts to restore the qualifications of their guardians. In a word, only in legislation, the qualification of the guardians, the responsibility of guardianship, and the establishment of an effective custody transfer system can be established. Fundamentally solve the problem of the absence of guardianship of underage children and ensure their healthy growth.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923
【参考文献】
相关期刊论文 前2条
1 李芳;英国衡平法初探[J];河北法学;2000年01期
2 胡巍;试论监护权的转移[J];河南省政法管理干部学院学报;2003年05期
，本文编号：2127992
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