我国增设不完全收养模式研究
发布时间：2018-10-16 20:19
【摘要】：我国《收养法》自1991年颁布实施以来,其明确规定只采用完全收养模式。尽管此种方式有益于缓解当时社会所面临的关于收养的难题,但随着社会的不断发展,受当时立法环境以及立法技术的影响,现行收养制度已经难以应对社会现实所带来的新的困境,法之价值的发挥也受到桎梏。理论来源于实践,收养制度需要与时俱进。作为收养制度的两大支柱之一,不完全收养历史悠久,并同完全收养一起在收养制度的发展与完善过程中起到至关重要的作用。虽然当今收养的趋势逐渐以完全收养为主,但由于两种收养模式所体现的社会功能有所区别,绝大多数国家所采用的收养模式依然是两者兼具,借此来更好地维护收养人与被收养人的合法利益。针对课题特点,本文采用比较分析方法、理论分析方法以及文献分析方法进行研究。以不完全收养为主线,通过对其定义、历史以及发展过程的阐述,并结合我国社会现实来明确该模式在我国增设的可行性与必要性。在此基础上,通过对三个国家不同类型的不完全收养模式的比较分析,提出有关我国增设不完全收养模式的立法建议。本文共分为四个部分。第一部分主要介绍不完全收养的基本原理,即对于不完全收养的定义、域外历史发展过程以及其在我国的现状进行阐述。第二部分是关于我国增设不完全收养的可行性以及必要性的分析。对于可行性,主要从理念基础、历史基础以及现实基础三个方面进行论述。对于必要性的论述主要集中在三个方面：一是不完全收养对于当前收养制度所体现的完善作用；二是不完全收养下的成年人收养对于我国养老压力的有效缓解；三是不完全收养有助于收养制度人文关怀特性的体现。第三部分是通过对于《法国民法典》的单纯收养、《德国民法典》的成年人收养以及《意大利民法典》的不完全收养这三种收养模式的比较,总结出其在收养模式、收养要件、收养效力以及收养解除四个方面的主要特征。第四部分在前者比较分析的基础上,结合我国现行《收养法》的立法条件,对于选择何种立法模式、不完全收养要件如何设定、具体效力如何强化以及如何撤销等方面作出相关制度设计。
[Abstract]:Since its promulgation and implementation in 1991, the Adoption Law of China only adopts the mode of complete adoption. While this approach was useful in alleviating the difficulties faced by society at that time with regard to adoption, as society continued to develop, it was affected by the legislative environment and techniques of the time, The current adoption system has been unable to cope with the new dilemma brought about by the social reality, and the exertion of the value of law has also been shackled. The theory comes from practice, and the adoption system needs to keep pace with the times. As one of the two pillars of the adoption system, incomplete adoption has a long history and plays a vital role in the development and improvement of the adoption system together with complete adoption. Although the current trend of adoption is gradually towards full adoption, due to the differences in social functions embodied in the two modes of adoption, the adoptions adopted in most countries are still both. In order to better protect the legitimate interests of adopters and adoptees. According to the characteristics of the subject, this paper adopts comparative analysis method, theoretical analysis method and literature analysis method to study. Taking incomplete adoption as the main line, this paper expounds its definition, history and development process, and makes clear the feasibility and necessity of adding this model in our country by combining the social reality of our country. On this basis, through the comparative analysis of different types of incomplete adoptions in three countries, this paper puts forward some legislative suggestions on the establishment of incomplete adoptions in China. This paper is divided into four parts. The first part mainly introduces the basic principle of incomplete adoption, that is, the definition of incomplete adoption, the historical development process and the present situation of incomplete adoption in China. The second part analyzes the feasibility and necessity of adding incomplete adoptions in China. For feasibility, mainly from the idea basis, the historical basis and the reality foundation three aspects carries on the elaboration. The discussion of necessity mainly focuses on three aspects: first, the perfect effect of incomplete adoption on the current adoption system, the second, the effective relief of the pressure of adult adoption under incomplete adoption for the aged in our country; Third, incomplete adoption is helpful to the embodiment of humanistic care in adoption system. The third part is the comparison of the three adoption modes: the simple adoption of the French Civil Code, the adult adoption of the German Civil Code and the incomplete adoption of the Italian Civil Code. The main features of the four aspects of the effectiveness of adoption and the termination of adoption. In the fourth part, on the basis of comparative analysis of the former, combined with the current legislative conditions of our country's Adoption Law, how to set up the elements of incomplete adoption as to which legislative model to choose, How to strengthen the specific effect and how to cancel the relevant system design.
【学位授予单位】：福州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.9
本文编号：2275530
[Abstract]:Since its promulgation and implementation in 1991, the Adoption Law of China only adopts the mode of complete adoption. While this approach was useful in alleviating the difficulties faced by society at that time with regard to adoption, as society continued to develop, it was affected by the legislative environment and techniques of the time, The current adoption system has been unable to cope with the new dilemma brought about by the social reality, and the exertion of the value of law has also been shackled. The theory comes from practice, and the adoption system needs to keep pace with the times. As one of the two pillars of the adoption system, incomplete adoption has a long history and plays a vital role in the development and improvement of the adoption system together with complete adoption. Although the current trend of adoption is gradually towards full adoption, due to the differences in social functions embodied in the two modes of adoption, the adoptions adopted in most countries are still both. In order to better protect the legitimate interests of adopters and adoptees. According to the characteristics of the subject, this paper adopts comparative analysis method, theoretical analysis method and literature analysis method to study. Taking incomplete adoption as the main line, this paper expounds its definition, history and development process, and makes clear the feasibility and necessity of adding this model in our country by combining the social reality of our country. On this basis, through the comparative analysis of different types of incomplete adoptions in three countries, this paper puts forward some legislative suggestions on the establishment of incomplete adoptions in China. This paper is divided into four parts. The first part mainly introduces the basic principle of incomplete adoption, that is, the definition of incomplete adoption, the historical development process and the present situation of incomplete adoption in China. The second part analyzes the feasibility and necessity of adding incomplete adoptions in China. For feasibility, mainly from the idea basis, the historical basis and the reality foundation three aspects carries on the elaboration. The discussion of necessity mainly focuses on three aspects: first, the perfect effect of incomplete adoption on the current adoption system, the second, the effective relief of the pressure of adult adoption under incomplete adoption for the aged in our country; Third, incomplete adoption is helpful to the embodiment of humanistic care in adoption system. The third part is the comparison of the three adoption modes: the simple adoption of the French Civil Code, the adult adoption of the German Civil Code and the incomplete adoption of the Italian Civil Code. The main features of the four aspects of the effectiveness of adoption and the termination of adoption. In the fourth part, on the basis of comparative analysis of the former, combined with the current legislative conditions of our country's Adoption Law, how to set up the elements of incomplete adoption as to which legislative model to choose, How to strengthen the specific effect and how to cancel the relevant system design.
【学位授予单位】：福州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.9
【参考文献】
相关硕士学位论文 前3条
1 秦艺芳;不完全收养制度比较研究[D];中国政法大学;2010年
2 张晶莹;论我国收养法律制度的完善[D];西南政法大学;2009年
3 李宏玉;我国收养法律制度论[D];山东大学;2007年
，本文编号：2275530
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