论未成年人财产监护制度
发布时间：2019-04-16 12:36
【摘要】：未成年人的财产是指未成年人通过劳动报酬、知识产权的财产权、赠与、遗赠等方式取得的独立的财产。与成年人一样,未成年人的财产权利亦应当受到保护,其实现途径则是通过监护的形式,由财产监护人对未成年人的财产进行妥善照顾管理。但财产监护人存在损害未成年人财产利益的风险,为此因当对财产监护关系予以规范。我国的未成年人财产监护制度在立法上较为欠缺,部分内容缺乏可操作性,在司法实践中造成了一定的混乱。 笔者将通过对国外的未成年人财产监护制度进行比较研究,分别对大陆法系国家的亲权和监护分离制度及英美法系国家的亲权与监护合一制度进行审视,从中吸取成功的经验,意图尝试建立适合我国国情的未成年人财产监护制度。其中包括选取了大陆法系国家的典型代表德国和英美法系国家的典型代表美国作为分析的重点。国外法治国家相关立法技术和法律实践经验为我国的未成年人财产监护制度的完善提供了宝贵的经验和素材。笔者试图抛弃目前学界关于亲权与监护的争论,以“子女利益最佳”原则作为逻辑起点,具体规范财产监护中的监护人职责的内容,以及在民事交往中监护人行为的法律效力问题。 我国的法律在保护未成年人财产权利上还做得很不够,由于历史的原因,我国在未成年人财产监护制度方面的立法还比较欠缺。面对错综复杂的案情,缺乏法律依据的法官往往只能通过自由裁量来平衡各方利益,然而这样的做法引起的是更加混乱的司法局面。当务之急是尽早制订出符合我国国情的未成年人财产监护的法律规范。 经过理论及实证分析,笔者认为监护制度应当以未成年人利益为核心,同时兼顾其他法律主体的合法权益,协调好未成年人利益与保护交易安全是重要问题。传统理论拘泥于监护与亲权的关系并无太大实际意义。笔者努力在此基础上借鉴国外成熟的立法技术与经验,理顺法律规范的逻辑,并就其中涉及的当下富有争议的如监护人处分行为的法律效力等问题作出合理的解释。 笔者将运用比较分析的方法、历史分析的方法以及通过实证法来分析财产监护的架构基础和实际运行。除了参考了传统大陆法系国家的法律素材外,还引入了英美法系国家的法律规范,并加以比较,尝试找出各自的优劣,为我国的财产监护制度的法律移植进行粗浅的分析。
[Abstract]:The property of the minor refers to the independent property obtained by the minor through the means of labor remuneration, intellectual property rights, gifts, bequests and so on. Like adults, the property rights of minors should also be protected through the form of guardianship, in which property guardians take proper care of the property of minors. However, the guardian of property has the risk of harming the interests of the minor's property, so the guardianship of the property should be regulated. The minor property guardianship system in our country is lacking in legislation and some contents are lack of maneuverability, which leads to some confusion in the judicial practice. Through a comparative study of the guardianship system of minors' property abroad, the author examines the separation system of parental power and guardianship in civil law countries and the system of unity of parental power and guardianship in Anglo-American law countries, and draws the successful experience from it. The intention is to try to establish a property guardianship system for minors suitable for our national conditions. Including the typical representative of continental law countries Germany and common law countries of the typical representative of the United States as the focus of the analysis. The related legislation technology and legal practice experience of foreign countries ruled by law provide valuable experience and material for the perfection of the guardianship system of minors' property in our country. The author tries to abandon the current academic debate on parental rights and guardianship, taking the principle of "the best interests of children" as the logical starting point, and specifically standardizing the contents of guardianship duties in property guardianship. And the legal effect of guardianship in civil communication. The law of our country has not done enough to protect the property rights of minors. Due to historical reasons, the legislation of guardianship system of minors' property is still lacking in our country. In the face of the complexity of the case, judges without legal basis often have to balance the interests of all parties by discretion, but this leads to a more chaotic judicial situation. The urgent task is to draw up as soon as possible the legal norms of property guardianship of minors in line with China's national conditions. Through theoretical and empirical analysis, the author thinks that the guardianship system should take the interests of minors as the core, at the same time take into account the legitimate rights and interests of other legal subjects, coordinate the interests of minors and protect the safety of transactions is an important issue. The relationship between guardianship and parental power is of little practical significance in traditional theory. On this basis, the author tries to draw lessons from foreign mature legislative technology and experience, straighten out the logic of legal norms, and make a reasonable explanation of the controversial issues such as the legal effect of the action of guardian punishment. The author will use the method of comparative analysis, the method of historical analysis and the method of practical law to analyze the structure and actual operation of property guardianship. In addition to referring to the legal materials of the traditional civil law countries, it also introduces the legal norms of the common law countries and compares them, tries to find out their merits and demerits, and makes a superficial analysis for the legal transplantation of the property guardianship system in our country.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923
本文编号：2458784
[Abstract]:The property of the minor refers to the independent property obtained by the minor through the means of labor remuneration, intellectual property rights, gifts, bequests and so on. Like adults, the property rights of minors should also be protected through the form of guardianship, in which property guardians take proper care of the property of minors. However, the guardian of property has the risk of harming the interests of the minor's property, so the guardianship of the property should be regulated. The minor property guardianship system in our country is lacking in legislation and some contents are lack of maneuverability, which leads to some confusion in the judicial practice. Through a comparative study of the guardianship system of minors' property abroad, the author examines the separation system of parental power and guardianship in civil law countries and the system of unity of parental power and guardianship in Anglo-American law countries, and draws the successful experience from it. The intention is to try to establish a property guardianship system for minors suitable for our national conditions. Including the typical representative of continental law countries Germany and common law countries of the typical representative of the United States as the focus of the analysis. The related legislation technology and legal practice experience of foreign countries ruled by law provide valuable experience and material for the perfection of the guardianship system of minors' property in our country. The author tries to abandon the current academic debate on parental rights and guardianship, taking the principle of "the best interests of children" as the logical starting point, and specifically standardizing the contents of guardianship duties in property guardianship. And the legal effect of guardianship in civil communication. The law of our country has not done enough to protect the property rights of minors. Due to historical reasons, the legislation of guardianship system of minors' property is still lacking in our country. In the face of the complexity of the case, judges without legal basis often have to balance the interests of all parties by discretion, but this leads to a more chaotic judicial situation. The urgent task is to draw up as soon as possible the legal norms of property guardianship of minors in line with China's national conditions. Through theoretical and empirical analysis, the author thinks that the guardianship system should take the interests of minors as the core, at the same time take into account the legitimate rights and interests of other legal subjects, coordinate the interests of minors and protect the safety of transactions is an important issue. The relationship between guardianship and parental power is of little practical significance in traditional theory. On this basis, the author tries to draw lessons from foreign mature legislative technology and experience, straighten out the logic of legal norms, and make a reasonable explanation of the controversial issues such as the legal effect of the action of guardian punishment. The author will use the method of comparative analysis, the method of historical analysis and the method of practical law to analyze the structure and actual operation of property guardianship. In addition to referring to the legal materials of the traditional civil law countries, it also introduces the legal norms of the common law countries and compares them, tries to find out their merits and demerits, and makes a superficial analysis for the legal transplantation of the property guardianship system in our country.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923
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