论我国未成年人监护权的协议转移
发布时间：2019-05-22 17:06
【摘要】：未成年人监护权转移制度是监护制度的重要组成部分,尤其是在法定代理人一方死亡或丧失监护能力的前提下,该制度对调整和规范父母子女关系和家族关系发挥着积极作用,若不加以正确引导规范,将导致未成年子女的权益受损。监护权的转移又名委托监护,其与监护权的设置是两个完全不同的概念。我国现行民法制度中对未成年人监护权的转移规定相当简单,立法的不足导致司法、守法的困惑。因此,本文以实际案例为基点,讨论在未成年人的一方法定代理人死亡或丧失监护能力的情形下,另一方监护人与第二顺位的法定监护人达成的监护权转移协议,对该协议的正确认定,并就我国未成年人监护权协议转移存在的不足进行探讨,结合国外相关规定,针对实际案件提出相关完善建议。 本文除引言和结语外,分为五个部分,共约16688字。 第一部分据以研究的案例。该部分主要介绍了以本文研究的监护权协议转移制度为核心的案件,从该案的案由、案件来源、原审法院判决内容三个方面进行了阐述。 第二部分案件焦点。该部分主要介绍了该案在实际审判中当事人的争议焦点,引出本文探讨的相关法律问题。 第三部分争议与分歧意见。该部分主要阐述了与案件焦点相关的四个法律问题,即案由确定、监护权协议转移的认定、第二监护人的权利和转移协议的效力,分别介绍了案件审理过程中合议庭成员在这四个法律问题上产生的不同意见和作者观点。 第四部分从本案看我国未成年人监护权协议转移的立法缺陷及完善建议。该部分主要从五个方面进行阐述,针对我国关于未成年人监护权协议转移的基本内容,结合国外关于该制度的立法情况,指出我国未成年人监护权协议转移的缺陷,最后提出关于未成年人监护权协议转移的完善意见。同时阐述了在监护权转移的协议中进行监护权的设置问题,法院确认其监护人身份的具体条件。 第五部分研究结论。该部分主要分两个方面进行介绍,一是针对该案的研究结论,评议原审法院判决;二是作者提出自己的判决主张。
[Abstract]:The system of the custody transfer of the minor is an important part of the guardianship system, especially on the premise of the death or the loss of the guardianship ability of the legal representative, the system plays an active role in adjusting and regulating the relationship between the parent and the family and the family relationship. The rights and interests of minor children will be damaged. The transfer of custody is also known as the custody of the custody, and the setting of custody is two completely different concepts. In our current civil law system, the transfer of the custody of the minors is quite simple, and the lack of the legislation leads to the confusion of the judicial and the law-abiding. Therefore, in the case of the actual case as the base point, the custody transfer agreement between the guardian of the other party and the legal guardian of the second order is discussed in the case of the death or the loss of the monitoring capacity of one of the legal representatives of the minor, and the correct determination of the agreement is made. In addition, the author probes into the shortcomings of the transfer of the custody agreement of the minors in our country, and puts forward some suggestions on the improvement of the actual cases in the light of the relevant regulations of the foreign countries. In addition to the introduction and the conclusion, this paper is divided into five parts, about 16688. The first part is based on the study This part mainly introduces the case of the transfer system of the custody agreement, which is studied in this paper, from the case of the case, the origin of the case and the judgment of the court of the original instance. The second part. This part mainly introduces the focal point of the case in the actual trial, and leads out the phase of this paper. The issue of the closure of the law. Part III The main part of this part is the four legal issues related to the focus of the case, namely, the determination of the case, the determination of the transfer of the custody agreement, the rights of the second guardian and the right of the second guardian. The effect of the transfer agreement is the difference between the members of the collegial panel in the four legal issues. Opinion and author's point of view. The fourth part looks at the transfer of the custody agreement of the minors in our country from the present case. On the basis of five aspects, this part expounds the basic contents of the transfer of the custody agreement of the minors, and points out the supervision of the minors in our country in the light of the foreign legislation of the system. The defect of the transfer of the right to protect the rights, and finally put forward the custody of the minor. Perfect view of the transfer of the agreement. The issue of the establishment of the custody transfer in the custody transfer agreement is also stated, and the court has confirmed its supervision specific conditions for the identity of the person The fifth part is the conclusion of the fifth part. The part is mainly introduced in two aspects, one is the conclusion of the case and the judgment of the original instance court, and the other is the second one.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923
本文编号：2483092
[Abstract]:The system of the custody transfer of the minor is an important part of the guardianship system, especially on the premise of the death or the loss of the guardianship ability of the legal representative, the system plays an active role in adjusting and regulating the relationship between the parent and the family and the family relationship. The rights and interests of minor children will be damaged. The transfer of custody is also known as the custody of the custody, and the setting of custody is two completely different concepts. In our current civil law system, the transfer of the custody of the minors is quite simple, and the lack of the legislation leads to the confusion of the judicial and the law-abiding. Therefore, in the case of the actual case as the base point, the custody transfer agreement between the guardian of the other party and the legal guardian of the second order is discussed in the case of the death or the loss of the monitoring capacity of one of the legal representatives of the minor, and the correct determination of the agreement is made. In addition, the author probes into the shortcomings of the transfer of the custody agreement of the minors in our country, and puts forward some suggestions on the improvement of the actual cases in the light of the relevant regulations of the foreign countries. In addition to the introduction and the conclusion, this paper is divided into five parts, about 16688. The first part is based on the study This part mainly introduces the case of the transfer system of the custody agreement, which is studied in this paper, from the case of the case, the origin of the case and the judgment of the court of the original instance. The second part. This part mainly introduces the focal point of the case in the actual trial, and leads out the phase of this paper. The issue of the closure of the law. Part III The main part of this part is the four legal issues related to the focus of the case, namely, the determination of the case, the determination of the transfer of the custody agreement, the rights of the second guardian and the right of the second guardian. The effect of the transfer agreement is the difference between the members of the collegial panel in the four legal issues. Opinion and author's point of view. The fourth part looks at the transfer of the custody agreement of the minors in our country from the present case. On the basis of five aspects, this part expounds the basic contents of the transfer of the custody agreement of the minors, and points out the supervision of the minors in our country in the light of the foreign legislation of the system. The defect of the transfer of the right to protect the rights, and finally put forward the custody of the minor. Perfect view of the transfer of the agreement. The issue of the establishment of the custody transfer in the custody transfer agreement is also stated, and the court has confirmed its supervision specific conditions for the identity of the person The fifth part is the conclusion of the fifth part. The part is mainly introduced in two aspects, one is the conclusion of the case and the judgment of the original instance court, and the other is the second one.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923
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