论儿童家庭暴力中监护权的限制
发布时间：2019-03-25 15:17
【摘要】：在我国,对儿童家庭暴力中监护权进行限制,就是以法律规范为依据,以法院、检察院、公安机关、和民政部门为主要主体,对施暴监护人监护权进行限制。近年来,儿童家庭暴力事件频繁曝光,儿童家庭暴力问题日趋严重,给受害儿童身心造成巨大伤害。调查显示,父母(包括继父母和养父母)是儿童家庭暴力的主要施暴主体,监护权的不当行使是造成儿童家庭暴力的主要原因。因此,对监护权进行限制,是避免儿童遭受严重、持续性家庭暴力的关键。我国法律对于儿童家庭暴力中监护权限制的主要制度包括人身安全保护令、监护权撤销制度、父母监护权撤销后的监护人选任以及相关审理制度这四个方面。上述制度主要分布在《最高人民法院、最高人民检察院、公安部、民政部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》(下文简称《意见》)和《反家庭暴力法》中,且这些制度的实施也取得了良好的成效。但与域外相较而言,我国仍存在较大差距。因此,有必要借鉴域外成功经验,引入必要性和比例原则、增加人身安全保护令的积极性义务内容、完善父母监护权撤销后的监护人选任制度、在法院审理儿童家庭暴力案件的过程中引入法学领域外专业人士协助制度等,以期完善我国儿童家庭暴力中对监护权的限制,为日后预防和减少儿童家庭暴力提供有效途径。
[Abstract]:In our country, to restrict guardianship rights of children in domestic violence is to restrict guardianship rights of violent guardians on the basis of legal norms, courts, procuratorates, public security organs and civil affairs departments as the main subjects. In recent years, the incidents of children's domestic violence are exposed frequently, and the problem of children's domestic violence is becoming more and more serious, causing great harm to the child's body and mind. According to the investigation, parents (including stepparents and adoptive parents) are the main perpetrators of child domestic violence, and improper exercise of guardianship is the main cause of children's domestic violence. Therefore, the restriction of custody is the key to avoid serious and persistent domestic violence. The main system of guardianship restriction in domestic violence in China includes habeas corpus, revocation of guardianship, selection and appointment of guardianship after revocation of parental guardianship, and related trial system. The above-mentioned systems are mainly distributed in the Supreme people's Court, the Supreme people's Procuratorate, and the Ministry of Public Security, In the opinions of the Ministry of Civil Affairs on dealing with the infringement of the rights and interests of minors by guardians according to law (hereinafter referred to as the opinions) and the Anti-domestic violence Law, the implementation of these systems has also achieved good results. However, compared with the outside domain, there is still a big gap in our country. Therefore, it is necessary to draw lessons from the successful experience outside the territory, introduce the principle of necessity and proportion, increase the positive and obligatory content of the writ of personal protection, and perfect the system of the selection and appointment of guardians after the annulment of parental guardianship. In order to perfect the restriction of guardianship rights in children's domestic violence in our country, the system of professional assistance outside the legal field is introduced in the process of hearing children's domestic violence cases in court, so as to provide an effective way to prevent and reduce children's domestic violence in the future.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9
本文编号：2447085
[Abstract]:In our country, to restrict guardianship rights of children in domestic violence is to restrict guardianship rights of violent guardians on the basis of legal norms, courts, procuratorates, public security organs and civil affairs departments as the main subjects. In recent years, the incidents of children's domestic violence are exposed frequently, and the problem of children's domestic violence is becoming more and more serious, causing great harm to the child's body and mind. According to the investigation, parents (including stepparents and adoptive parents) are the main perpetrators of child domestic violence, and improper exercise of guardianship is the main cause of children's domestic violence. Therefore, the restriction of custody is the key to avoid serious and persistent domestic violence. The main system of guardianship restriction in domestic violence in China includes habeas corpus, revocation of guardianship, selection and appointment of guardianship after revocation of parental guardianship, and related trial system. The above-mentioned systems are mainly distributed in the Supreme people's Court, the Supreme people's Procuratorate, and the Ministry of Public Security, In the opinions of the Ministry of Civil Affairs on dealing with the infringement of the rights and interests of minors by guardians according to law (hereinafter referred to as the opinions) and the Anti-domestic violence Law, the implementation of these systems has also achieved good results. However, compared with the outside domain, there is still a big gap in our country. Therefore, it is necessary to draw lessons from the successful experience outside the territory, introduce the principle of necessity and proportion, increase the positive and obligatory content of the writ of personal protection, and perfect the system of the selection and appointment of guardians after the annulment of parental guardianship. In order to perfect the restriction of guardianship rights in children's domestic violence in our country, the system of professional assistance outside the legal field is introduced in the process of hearing children's domestic violence cases in court, so as to provide an effective way to prevent and reduce children's domestic violence in the future.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9
【参考文献】
中国期刊全文数据库 前2条
1 林艳琴;;我国未成年人监护法律制度现状检讨与完善构想[J];东南学术;2013年02期
2 张晓茹;;日本家事法院及其对我国的启示[J];比较法研究;2008年03期
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