我国老年人监护制度的立法完善
发布时间：2018-08-27 06:49
【摘要】：随着老龄化社会的到来,我国老年人口规模大,老龄化速度快,呈现出典型的未富先老态势,而我国现有的有关老龄人口的法律规定多为原则性的保护条款,缺乏满足老年人个性需求的辅助型措施,急需完善。同时,世界多数国家都在进行或已经完成成年监护制度的改革,老年人监护制度是其中最重要的内容,核心理念就是“尊重自我决定权”和“维持生活正常化”。2012年,我国修订了《老年人权益保护法》,其中第二十六条确定了意定监护制度,但仅有法律的原则性规定是远远不够的。为了应对人口老龄化的挑战,也为了和国际接轨,在未来的《民法典》及相关立法体系中完善我国的老年人监护制度己显得十分必要。从理论上看,研究老年人监护制度可以弥补我国监护制度的不足,尤其是成年监护制度的不足。从实践上看,能为我国老年人监护制度提供立法建议,以更好地面对老龄化社会的冲击。本文从四个方面分析我国老年人监护制度的立法完善,以更好地保护老年人的合法权益。前言部分论述了本文的选题背景和选题意义,着重强调了我国当前老龄社会的现状、新修订的《老年人权益保护法》的内容以及研究老年人监护制度的理论意义和现实意义。正文部分首先运用概念分析和价值分析的方法,从老年人监护的概念和我国建立老年人监护制度的价值基础展开叙述,建立了老年人监护制度的理论框架,并进一步分析我国建立老年人监护制度的必要性。紧接着本人结合我国目前的相关立法,对老年人监护制度的现状进行了梳理,总结归纳了现有相关法律法规情况,分析其应然与实然之问的差距,指出我国老年人监护制度在立法体例、理念和具体制度方面的不足。然后,本论文对老年人监护制度进行了比较法上的研究。介绍了大陆法系国家如德国、日本、法国,英美法系国家如英国、美国的成年监护制度改革情况,通过对两大法系成年监护制度改革的深入分析,为完善我国相应立法提供理论支持和经验借鉴。论文的最后一部分是最核心的内容,也是作者思考最多的部分,本人通过系统的研究,借鉴国外立法的先进经验,结合我国的国情,顺应国际监护立法先进理念,从法定老年人监护、意定老年人监护两种监护方式入手,试图提出完善我国的老年人监护制度的建议。针对第二部分查找出的立法不足,具体从建立老年人监护制度的立法体例;扩大被监护对象的范围;设立不同层次的监护;合理调整监护主体制度,确立社会机构监护人;明确监护人权利;建立配套的意定监护协议登记制度;设置监护监督机制;加强老年人监护制度的程序保障八个方面提出立法意见。
[Abstract]:With the coming of the aging society, the aged population in our country is large and the aging speed is fast, which presents a typical situation of aging before getting rich. However, the existing laws and regulations on the aging population in our country are mostly the protection clauses of principle. Lack of supplementary measures to meet the needs of the elderly personality, the urgent need to improve. At the same time, most countries in the world are in the process of, or have completed, the reform of the adult guardianship system, the most important of which is the system of guardianship of the elderly, the core concepts of which are "respect for the right to self-determination" and "maintain the normalization of life". In 2012, China amended the Law on the Protection of the Rights and interests of the elderly. Article 26 establishes the system of guardianship, but the principle of the law is far from enough. In order to meet the challenge of the aging population and to meet the international standards, it is necessary to perfect the guardianship system of the elderly in the Civil Code and related legislation system in the future. Theoretically, studying the guardianship system of the elderly can make up for the deficiency of the guardianship system of our country, especially the deficiency of the adult guardianship system. From the practical point of view, it can provide legislative advice for the guardianship system of the elderly in our country, so as to better face the impact of the aging society. In order to protect the legal rights and interests of the elderly, this paper analyzes the legislative perfection of the guardianship system for the elderly in four aspects. The preface discusses the background and significance of the topic selection, emphasizes the current situation of the aging society in China, the contents of the newly revised Law on the Protection of the Rights and interests of the elderly, and the theoretical and practical significance of the study on the guardianship system of the elderly. In the part of the text, the concept of guardianship of the elderly and the value basis of the establishment of the guardianship system for the elderly are described by means of conceptual analysis and value analysis, and the theoretical framework of the guardianship system for the elderly is established. And further analysis of the necessity of establishing a guardianship system for the elderly in China. Then the author combs the current situation of the elderly guardianship system, summarizes the existing relevant laws and regulations, and analyzes the gap between the ought to be and the actual situation. This paper points out the deficiency of the system in legislative style, idea and concrete system. Then, this paper carries on the comparative research to the elderly guardianship system. This paper introduces the reform of adult guardianship system in civil law countries such as Germany, Japan, France, common law countries such as the United Kingdom and the United States, and analyzes the reform of the adult guardianship system in the two major legal systems. To improve the relevant legislation in China to provide theoretical support and experience. The last part of the thesis is the core content and the most important part of the author. Through systematic research, I draw lessons from the advanced experience of foreign legislation, combine the national conditions of our country, conform to the advanced idea of international guardianship legislation. In this paper, the author tries to put forward some suggestions on how to perfect the guardianship system of the elderly in our country, starting with the legal guardianship of the elderly and the two types of guardianship of the elderly. In view of the lack of legislation found out in the second part, the legislative style of establishing the guardianship system for the elderly; expanding the scope of the objects under guardianship; setting up different levels of guardianship; adjusting the guardianship subject system rationally; establishing the social guardian; The author makes clear the guardian's right, establishes the registration system of the agreement of guardianship, sets up the supervision mechanism of guardianship, and puts forward the legislative opinions in eight aspects: strengthening the procedural guarantee of the guardianship system for the elderly.
【学位授予单位】：河南师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
，
本文编号：2206458
[Abstract]:With the coming of the aging society, the aged population in our country is large and the aging speed is fast, which presents a typical situation of aging before getting rich. However, the existing laws and regulations on the aging population in our country are mostly the protection clauses of principle. Lack of supplementary measures to meet the needs of the elderly personality, the urgent need to improve. At the same time, most countries in the world are in the process of, or have completed, the reform of the adult guardianship system, the most important of which is the system of guardianship of the elderly, the core concepts of which are "respect for the right to self-determination" and "maintain the normalization of life". In 2012, China amended the Law on the Protection of the Rights and interests of the elderly. Article 26 establishes the system of guardianship, but the principle of the law is far from enough. In order to meet the challenge of the aging population and to meet the international standards, it is necessary to perfect the guardianship system of the elderly in the Civil Code and related legislation system in the future. Theoretically, studying the guardianship system of the elderly can make up for the deficiency of the guardianship system of our country, especially the deficiency of the adult guardianship system. From the practical point of view, it can provide legislative advice for the guardianship system of the elderly in our country, so as to better face the impact of the aging society. In order to protect the legal rights and interests of the elderly, this paper analyzes the legislative perfection of the guardianship system for the elderly in four aspects. The preface discusses the background and significance of the topic selection, emphasizes the current situation of the aging society in China, the contents of the newly revised Law on the Protection of the Rights and interests of the elderly, and the theoretical and practical significance of the study on the guardianship system of the elderly. In the part of the text, the concept of guardianship of the elderly and the value basis of the establishment of the guardianship system for the elderly are described by means of conceptual analysis and value analysis, and the theoretical framework of the guardianship system for the elderly is established. And further analysis of the necessity of establishing a guardianship system for the elderly in China. Then the author combs the current situation of the elderly guardianship system, summarizes the existing relevant laws and regulations, and analyzes the gap between the ought to be and the actual situation. This paper points out the deficiency of the system in legislative style, idea and concrete system. Then, this paper carries on the comparative research to the elderly guardianship system. This paper introduces the reform of adult guardianship system in civil law countries such as Germany, Japan, France, common law countries such as the United Kingdom and the United States, and analyzes the reform of the adult guardianship system in the two major legal systems. To improve the relevant legislation in China to provide theoretical support and experience. The last part of the thesis is the core content and the most important part of the author. Through systematic research, I draw lessons from the advanced experience of foreign legislation, combine the national conditions of our country, conform to the advanced idea of international guardianship legislation. In this paper, the author tries to put forward some suggestions on how to perfect the guardianship system of the elderly in our country, starting with the legal guardianship of the elderly and the two types of guardianship of the elderly. In view of the lack of legislation found out in the second part, the legislative style of establishing the guardianship system for the elderly; expanding the scope of the objects under guardianship; setting up different levels of guardianship; adjusting the guardianship subject system rationally; establishing the social guardian; The author makes clear the guardian's right, establishes the registration system of the agreement of guardianship, sets up the supervision mechanism of guardianship, and puts forward the legislative opinions in eight aspects: strengthening the procedural guarantee of the guardianship system for the elderly.
【学位授予单位】：河南师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
，
本文编号：2206458
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