论我国老年人意定监护制度
发布时间：2018-09-16 21:44
【摘要】：2013年7月1日,新修订的《老年人权益保护法》由十一届全国人大常委会通过并正式施行。此次修订设立了任意监护制度,首次建立起我国的老年人监护制度,可以说是我国监护法律制度的一次重要突破。据有关调查数据,从九十年代末开始中国人口老龄化比重超过十分之一,表明我国已经进入老年型国家的行列。直至2011年末,我国超过60岁的老年人已近两亿,占比为13.7%。预计到2013年末,我国老年人口将增加四千多万,将超过两亿。人口老龄化比重速增不再是个人和家庭的现实问题,其实已经影响到了政治、经济、文化、社会的各个方面。如何积极地应对人口老龄化,已经关系到了国计民生、社会秩序的稳定。诚然,《老年人权益保障法》在保护老年人的合法权益上有着主要的作用。新《老年人权益保障法》的修订更加增强了老年人自我保护的法律意识,同时更加注重更广泛地提高老年人群体的日常生活质量与幸福感。然而在监护立法的角度看,我国老年人监护制度自身还未形成完整的体系构建,并且对于意定监护制度的设立也仅是雏形初显。无论是对于意定监护还是老年人监护,仅仅依据《老年人权益保障法》第26条作出的规定,现有的内容都过于抽象概括,从而缺乏可操作性。因此,确有必要深入研究老年人意定监护及其监护制度中的不足与问题仍然,并对之进行完善。本文即从五个方面对我国老年人意定监护制度的内容展开分析,并根据我国目前的立法,重点评析我国老年人意定监护制度存在的主要问题,通过现状及其原因分析来论证该制度完善的必要性。随之从与我国国情民情相近的角度选取日本和我国台湾地区的相关立法改革,借鉴其中成熟的经验,探究完善我国老年人意定监护制度的必要性和可行性,之后根据上文的分析提出具体的完善建议。本文的第一部分,引言主要阐明本文探究的核心问题,论述研究该主题的社会背景和法律意义。第二部分为概述部分,主要从老年人意定监护制度的概念、特征,该制度的起源、发展进程,以及老年人意定监护与相关概念的辨析等三个方面进行阐述。第三部分则着重分析现下我国的老年人监护以及老年人意定监护制度的现状,重点总结出其中存在的不足、问题,继而对我国老年人意定监护制度有必要进一步完善的原因进行具体分析。第四部分则意在借鉴我国台湾地区和日本两地关于监护立法的成熟经验,就其老年人监护制度中的具体要点进行比较,并从中借鉴可取经验,以探讨我国老年人意定监护制度完善的可行路径。本文第五部分为完善建议,主要围绕我国老年人意定监护的制度如何设计和怎样运行进行具体分析,包括意定监护当事人资格的完善,意定监护合同的完善以及建立老年人监护监督制度三个方面,以期提出完善我国老年人意定监护制度的可行建议。
[Abstract]:On July 1, 2013, the newly amended Law on the Protection of the Rights and interests of the elderly was adopted by the standing Committee of the Eleventh National people's Congress and put into effect. This revision established the arbitrary guardianship system and established the guardianship system for the elderly for the first time, which can be said to be an important breakthrough in the legal system of guardianship in our country. According to the survey data, the proportion of population aging in China has exceeded 1/10 since the end of 1990s, which indicates that China has entered the ranks of aging countries. By the end of 2011, there were nearly 200 million people over 60 years old in China, accounting for 13.7%. By the end of 2013, China's elderly population is expected to increase by more than 40 million, more than 200 million. The rapid increase in the proportion of population aging is no longer a real problem for individuals and families, but has already affected all aspects of politics, economy, culture and society. How to deal with the aging of the population actively, has a bearing on the national economy and people's livelihood, the stability of social order. It is true that the Law on the Protection of the Rights and interests of the elderly plays a major role in protecting the lawful rights and interests of the elderly. The revision of the new Law on the Protection of the Rights and interests of the elderly has strengthened the legal awareness of the self-protection of the elderly and paid more attention to improving the quality of daily life and well-being of the elderly more extensively. However, from the perspective of guardianship legislation, China's elderly guardianship system itself has not yet formed a complete system construction, and the establishment of the voluntary guardianship system is only the embryonic form. Whether it is determined guardianship or guardianship of the elderly, only according to the provisions of Article 26 of the Law on the Protection of the Rights and interests of the elderly, the existing content is too abstract and general, so it lacks operability. Therefore, it is necessary to further study the problems and deficiencies in the system. In this paper, the content of the system of the elderly is analyzed from five aspects, and according to the current legislation of our country, the main problems existing in the system are analyzed. The necessity of perfecting the system is demonstrated through the analysis of the present situation and its causes. Then, from the point of view of being close to the national conditions of our country, we select the relevant legislative reforms in Japan and Taiwan, learn from the mature experience among them, and explore the necessity and feasibility of perfecting the system of voluntary guardianship of the elderly in our country. Then according to the above analysis put forward specific suggestions for improvement. In the first part of this paper, the preface mainly clarifies the core problems of this paper, and discusses the social background and legal significance of the subject. The second part is an overview, mainly from the concept, characteristics, the origin of the system, the development of the system, as well as the elderly determination guardianship and related concepts of discrimination. The third part focuses on the analysis of the current situation of our country's elderly guardianship and the elderly determined guardianship system, and summarizes the shortcomings and problems. Then it analyzes the reasons why it is necessary to perfect the system. The fourth part is intended to draw lessons from the mature experience of guardianship legislation in Taiwan and Japan, to compare the specific points of their guardianship system for the elderly, and draw lessons from the desirable experience. In order to explore the elderly care system in China to improve the feasible path. The fifth part of this paper mainly focuses on how to design and how to operate the system of the elderly free guardianship in China, including the improvement of the qualification of the litigants. In this paper, the author puts forward some feasible suggestions on how to perfect the supervision system for the elderly in order to perfect the contract of voluntary guardianship and the establishment of the supervision system for the elderly.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.8
，
本文编号：2244905
[Abstract]:On July 1, 2013, the newly amended Law on the Protection of the Rights and interests of the elderly was adopted by the standing Committee of the Eleventh National people's Congress and put into effect. This revision established the arbitrary guardianship system and established the guardianship system for the elderly for the first time, which can be said to be an important breakthrough in the legal system of guardianship in our country. According to the survey data, the proportion of population aging in China has exceeded 1/10 since the end of 1990s, which indicates that China has entered the ranks of aging countries. By the end of 2011, there were nearly 200 million people over 60 years old in China, accounting for 13.7%. By the end of 2013, China's elderly population is expected to increase by more than 40 million, more than 200 million. The rapid increase in the proportion of population aging is no longer a real problem for individuals and families, but has already affected all aspects of politics, economy, culture and society. How to deal with the aging of the population actively, has a bearing on the national economy and people's livelihood, the stability of social order. It is true that the Law on the Protection of the Rights and interests of the elderly plays a major role in protecting the lawful rights and interests of the elderly. The revision of the new Law on the Protection of the Rights and interests of the elderly has strengthened the legal awareness of the self-protection of the elderly and paid more attention to improving the quality of daily life and well-being of the elderly more extensively. However, from the perspective of guardianship legislation, China's elderly guardianship system itself has not yet formed a complete system construction, and the establishment of the voluntary guardianship system is only the embryonic form. Whether it is determined guardianship or guardianship of the elderly, only according to the provisions of Article 26 of the Law on the Protection of the Rights and interests of the elderly, the existing content is too abstract and general, so it lacks operability. Therefore, it is necessary to further study the problems and deficiencies in the system. In this paper, the content of the system of the elderly is analyzed from five aspects, and according to the current legislation of our country, the main problems existing in the system are analyzed. The necessity of perfecting the system is demonstrated through the analysis of the present situation and its causes. Then, from the point of view of being close to the national conditions of our country, we select the relevant legislative reforms in Japan and Taiwan, learn from the mature experience among them, and explore the necessity and feasibility of perfecting the system of voluntary guardianship of the elderly in our country. Then according to the above analysis put forward specific suggestions for improvement. In the first part of this paper, the preface mainly clarifies the core problems of this paper, and discusses the social background and legal significance of the subject. The second part is an overview, mainly from the concept, characteristics, the origin of the system, the development of the system, as well as the elderly determination guardianship and related concepts of discrimination. The third part focuses on the analysis of the current situation of our country's elderly guardianship and the elderly determined guardianship system, and summarizes the shortcomings and problems. Then it analyzes the reasons why it is necessary to perfect the system. The fourth part is intended to draw lessons from the mature experience of guardianship legislation in Taiwan and Japan, to compare the specific points of their guardianship system for the elderly, and draw lessons from the desirable experience. In order to explore the elderly care system in China to improve the feasible path. The fifth part of this paper mainly focuses on how to design and how to operate the system of the elderly free guardianship in China, including the improvement of the qualification of the litigants. In this paper, the author puts forward some feasible suggestions on how to perfect the supervision system for the elderly in order to perfect the contract of voluntary guardianship and the establishment of the supervision system for the elderly.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.8
，
本文编号：2244905
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