我国老年人监护制度研究.doc

摘 要

二十世纪初期我国已经开始步入老龄化社会，这给我国经济发展、社会发展、政治发展带来了巨大且深远的影响。老年人监护问题在现实社会中的重要性日益凸显出来，而就目前我国现有的相关法律还不足以解决有关老年人监护方面的问题。面对老龄化加剧的世界性大趋势，加强对老年人的保护，完善我国老年人监护制度已经迫在眉睫。本文旨在我国现行的监护理念的指导下，对如何完善我国的老年人监护制度提出建议。

本文以“老年人监护制度研究”为选题进行研究，文章一共由五个部分组成。

首个部分为本文的引言部分。

第一章为老年人监护制度的基本理论。主要对监护制度的起源、老年人监护制度的含义、老年人监护制度的特征、老年人监护制度的性质等问题进行阐述。

第二章为国外老年人监护制度的立法及启示。主要介绍了德国、日本、英国、美国关于老年人监护制度的相关立法，并归纳出国外老年人监护制度的启示。国外老年人监护制度对我国的启示主要有：新制度在理论和基本原则上具有同一性；禁治产宣告制度得以废止；保护方式灵活多变；对意定监护制度的统一设立；公法化和社会化的强化。

第三章为我国老年人监护制度的缺陷。我国老年人监护制度的缺陷主要体现在现行监护制度中监护理念的落后、现行监护制度中监护范围狭窄、意定监护制度的缺失、对监护人监护资格规定不够明确、对监护人选任规则脱离现实、监护人权利与义务的不均衡、监护监督机构的缺失等方面。

第四章为完善我国老年人监护的必要性。本章明确指出之所以需要完善老年人监护制度，是因为这是应对我国老龄化问题严峻性的需要、家庭养老功能退化的需要、应对未富先老的社会现状的需要、维护老年人合法权益的需要、有助于实现社会的代际公平。

第五章为对我国老年人监护制度的完善。此段为文章重点段落，本章充分借鉴发达国家之经验，重点从我国老年人监护制度应遵循的理念、扩大受保护成年人之范围、老年人监护人主体方面的完善、完善老年人监护的方式、完善老年人监护监督机制等方面提出了笔者的一些建议。

关键词：监护；老年人监护；意定监护；监护人

Abstract

In the early 20th century already entered an aging society in our country, this to our country economic development, social development, political development has brought huge and far-reaching influence. Guardianship increasingly highlighted the importance of the problems in the real society, and the existing laws in China is not enough to solve the problem about the guardianship. Face the ages of the world trend, strengthen the protection of the elderly, to perfect our guardianship system is imminent. The purpose of this paper is to our current guardianship concept under the guidance of puts forward Suggestions on how to perfect our country's guardianship system.

This article "the elderly guardianship system research" as the topic for research, the article consists of five parts altogether. 

The first part is the introduction part of this paper. 

The basic theory of the first chapter for the elderly guardianship system. Mainly on the origin of the guardianship system, the meaning of the guardianship system, the characteristics of the guardianship system, elaborates the problems such as the nature of the guardianship system.

The second chapter to foreign legislation and Revelations of the guardianship system. Mainly introduced Germany, Japan, Britain, the United States about the legislation of guardianship system, and concludes the enlightenment of foreign guardianship system. Enlightenment to our country foreign guardianship system mainly include: the new system in theory and basic principles have identity; The forbidden announcement system from abolished; Flexible protection mode; To set the unification of the guardianship system set up; The strengthening of the public law and social.

The third chapter for the defects of the system of guardianship in China. The shortcomings of the guardianship system in China is mainly embodied in the backward ideas of guardianship in the current monitoring system, the existing guardianship system in the monitoring scope narrow, the lack of the guardianship system and by the guardians guardianship qualification regulation is unclear, the guardian selection rules from reality, the guardian of the rights and obligations is not balanced, the lack of care watchdog, etc.

The fourth chapter consummates our country the necessity of guardianship. It is pointed out in this chapter are need to improve the system of guardianship, because this is a response to the need of ageing serious situation in China, the needs of the family endowment function degradation, respond to the needs of the social status of old before rich, maintaining the lawful rights and interests of the elderly need, help to achieve social generational fair.

The fifth chapter for the perfection of the guardianship system in China. This section is the key paragraphs of article, fully draw on the experience of developed countries, this chapter mainly from the guardianship system in China should follow the idea of, expanding the scope of the protected adults, the elderly guardian subject of perfect, perfect guardianship way, improve the supervision of guardianship etc. Put forward some Suggestions of the author.

Key Words: Guardianship; Guardianship; By monitoring; The guardian

目 录

引言·······························································8

一、老年人监护制度的基本理论·······································15

  （一）监护制度的起源·············································15

1、罗马法上的监护制度··········································15

2、近代民法中的监护制度········································16

（二）老年人监护制度的含义·······································17

1、监护制度的含义··············································17

2、老年人监护制度的含义········································17

（三）老年人监护制度的特征·······································19

1、适用对象为老年人············································19

2、属于成年人监护制度的范畴···································19

3、监护的内容侧重于对被监护人的人身和生活的照顾················19

4、监护方式的特殊性············································19

  （四）老年人监护制度的性质·······································20

1、监护权利说··················································20

2、监护义务说··················································20

3、权利义务一体说··············································20

4、监护职责说··················································20

5、笔者的看法···················································21

二、国外老年人监护制度的立法及启示·································22

（一）国外老年人监护制度的立法状况·····························22

1、德国·······················································22

     2、日本·······················································23

     3、英国·······················································24

     4、美国·······················································25

  （二）国外老年人监护制度的启示···································27

1、新制度在理念和基本原则上具有同一性··························27

2、禁治产宣告制度得以废止······································27

3、保护方式灵活多变············································27

4、对意定监护制度的统一设立····································28

5、公法化和社会化的强化········································28

三、我国老年人监护制度的缺陷·······································29

  （一）我国老年人监护制度的现状···································29

1、《民法通则》··················································29

    2、《民法通则意见》··············································30

3、《老年人权益保障法》··········································31

（二）我国老年人监护制度存在的缺陷·······························32

  1、现行监护制度中监护理念落后·································32

2、监护范围狭窄···············································33

3、对监护人的监护资格规定不够明确·······························35

4、对监护人的选任规则一定程度上脱离现实·························35

5、监护人权利与义务的不均衡····································36

6、监护人监护资格的规范不够明确·······························36

7、监护监督机构的缺失··········································36

四、完善我国老年人监护制度的必要性·································37

  （一）应对我国老龄化问题严峻性的需要·····························37

  （二）家庭养老功能退化的需要·····································38

  （三）应对未富先老的社会现状的需要·······························39

  （四）维护老年人合法权益的需要···································40

  （五）有助于实现社会的代际公平···································41

五、我国老年人监护制度的完善·······································42

  （一）我国老年人监护制度应遵循的理念······························42

1、“维持本人生活正常化”理念···································42

2、“尊重本人自我决定权”理念···································43

  （二）扩大受保护成年人监护之范围··································43

  （三）老年人监护人主体方面的完善·································44

1、完善老年人监护人之资格规定···································44

2、完善老年人监护人的选任·······································44

3、完善老年人监护人的权利和义务·································46

  （四）老年人监护方式的完善········································48

1、引入意定监护制度············································48

2、引入公共监护制度············································49

  （五）完善老年人监护监督机制·····································50

结语·······························································51

致谢·······························································53

参考文献···························································54