论未成年人监护权撤销制度

发布时间：2018-05-20 10:20

本文选题：未成年人 + 父母监护权　；参考：《湘潭大学》2017年硕士论文

【摘要】：未成年人的发展关系着一个国家的未来,因此,给未成年人创造一个法治、稳定的社会成长环境是很有必要的(1)。纵观世界各国,教育、照顾未成年人均被国家列为首要任务,这种行为被认为是最崇高的美德。我国在保护未成年人这一方面的法律规定则有所欠缺,但随着我国加入《儿童权利公约》后,开始逐步重视对未成年人的保护。即使这样,我国有关未成年人受父母侵害的事件仍频繁发生,这就暴露出我国未成年人监护制度仍然存在很大缺陷,尤其是未成年人监护权撤销制度。直至2014年《关于依法处理监护人侵害未成年人权益行为若干问题的意见》的出台,作出了当未成年人遭受父母侵害后撤销监护权的一系列较完善的规定,包括发现举报、申请监护权撤销主体、撤销标准及法定事由,撤销后的安置和恢复等,为撤销监护权提供了较明确的法律依据。2017年《民法总则》的通过,更是以法律的形式对监护权的撤销及恢复等问题作出规定,明确提出在处理未成年人遭受父母侵害的问题上,要坚持未成年人利益最大原则和尊重未成年人真实意愿原则。司法实践的过程中,暴露了立法规定中存在的一些不足之处,例如,没有相应的监护权监督机制,导致国家不能更好地给父母提供专业的监护指导和帮助,不能对监护权撤销后重新选任监护人及其履行监护职责的过程进行监督;举报制度规定存在不妥之处,相关法律法规等均规定相关个人和单位可以或应当行使举报权利,由于权利不具有强制性,造成这些个人和单位怠于行使举报权利,且有关法定受理举报机关的规定不明确,最终导致公权力机关不能给予未成年人及时的法律救济;申请监护权撤销的主体范围有缺漏,未将检察机关纳入其范畴,造成司法资源浪费,也不利于检察机关参与到未成年人保护工作中;监护权撤销后未成年人的安置及监护权的恢复问题规定不明,导致司法实践中困难重重,而且给予法官过大的自由裁量权,可能会导致不能切实保护未成年人的合法权益的后果。当然,未成年人遭受父母侵害的问题得不到有效解决还有一个原因就是:传统观念对民众的思想影响较大,且民众的法治意识普遍较薄弱,尤其是对父母打骂未成年子女这一现象,父母认为是家事,外人无权插手,外人也不愿多生是非,即使看到有些家长对孩子施暴,也会放任不管,使未成年人的身心严重受损。基于对现实的反思,从法律层面出发,我们应该考虑如何弥补立法不足,使未成年人监护权撤销制度最大限度发挥作用,切实保护未成年人的合法权益,避免遭受来自父母的无端侵害。基于对上述问题的思考,本文以保护未成年人为出发点和落脚点,深入探究未成年人的合法权益遭受其监护人的不法侵害时撤销监护权的问题。通过对我国立法及司法实践现状进行分析,总结出未成年人监护权撤销制度存在的问题,并提出完善建议,希冀促进我国监护权撤销制度进一步发展,为未成年人的保护做好铺垫工作,以期最大限度地维护未成年人的合法权益,从而规制父母对未成年子女的不适当行为。
[Abstract]:The development of minors is related to the future of a country. Therefore, it is necessary to create a rule of law for minors and a stable environment for social growth (1). Throughout the world, education, taking care of the underage per capita is the most important task, and this behavior is considered to be the most noble virtue. The legal provisions are deficient, but as China joins the Convention on the rights of children, the protection of minors has been gradually attached to the protection of minors. Even so, the incidents of minors' infringement on minors still occur frequently in our country, which reveals that the guardianship system of minors in our country still has great defects, especially the withdrawal of the guardianship of minors. The system of marketing. Until 2014, the opinions on Several Issues concerning the violation of the rights and interests of minors by guardians in accordance with the law were introduced, and a series of more perfect regulations were made for the revocation of guardianship when the minors were violated by their parents, including the discovery of a report, the application of the right of custody to revoke the owner, the revocation of the standard and the legal cause, and the revocation of the revocation. It provides a clearer legal basis for the revocation of guardianship, which provides a clearer legal basis for the general provisions of the civil law in.2017, and makes a provision for the revocation and recovery of guardianship in the form of law. It is clear that the principle of the maximum interests of minors and the respect for minors should be persisted in dealing with the problems of the juvenile being infringed upon by the parents. The principle of real intention. In the process of judicial practice, some deficiencies in the legislative provisions have been exposed, for example, without a corresponding monitoring mechanism of custody, the state can not provide the parents with a better guidance and assistance to their parents, and can not reelect guardians and perform their guardianship duties after the revocation of guardianship. Supervision; the provisions of the reporting system are not appropriate, and the relevant laws and regulations stipulate that the relevant individuals and units may or should exercise the right to report it. Because the rights are not mandatory, these individuals and units are not able to exercise the right to report them, and the provisions on the legal admissibility organs are not clear, and the public authority can not. The legal remedies are given to minors in time; the subject scope of the application for the revocation of the guardianship is absent, and the procuratorial organ is not included in its category, which causes the waste of the judicial resources and the procuratorial organs' participation in the protection of the minors. After the revocation of the guardianship, the resettlement of the minors and the restoration of the guardianship rights are unknown, leading to the judicature. There are many difficulties in practice, and the excessive discretion of the judges may lead to the consequences that can not effectively protect the legitimate rights and interests of the minors. Of course, the problem that the minors are violated by the parents can not be effectively solved. One reason is that the traditional ideas have great influence on the people's thought, and the people's consciousness of the rule of law is universal. It is very weak, especially for parents to scold the minor children, parents think it is family, outsiders do not have the right to intervene, outsiders do not want to be more born. Even if some parents are brutal to their children, they will let the minors' body and mind seriously damaged. Based on the reality, we should consider the law. How to make up for the lack of legislation, make the system of minors' custody revocation to the maximum function, protect the legitimate rights and interests of minors, and avoid the unwarranted infringement from their parents. Based on the thinking of the above problems, this article takes the protection of minors as the starting point and the foothold, and deeply explores the legal rights and interests of minors. By analyzing the current situation of legislation and judicial practice in our country, this paper summarizes the existing problems of the system of revocation of the minors' guardianship rights, and puts forward some suggestions to improve the further development of the system of the revocation of the guardianship right in our country, so as to make a good paving for the protection of the minors, with a view to the maximum limit. We should safeguard the legitimate rights and interests of minors so as to regulate parents' inappropriate behavior to their minor children.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923

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