精神病患者近亲属滥用监护权规制研究

发布时间：2018-10-05 07:34

【摘要】：为避免公民“被精神病”,加强精神病人救治救济,保障精神病人生活健康权利,经历27年的漫漫立法过程,《中华人民共和国精神卫生法》终于千呼万唤始出来,亲权责任人将触犯刑律受到制裁。因为没有法律规范,实践中屡屡曝出“被精神病”案例,不应被收治的正常人由于各种原因,被当做精神病人收治。对精神障碍患者的收治,可能涉及到强制医疗、人身自由、名誉降低等；构成犯罪的,将依法追究其刑事责任。本文写在《精神卫生法》出台之后,焦点问题是精神病患者近亲属的监护权规制,从这一角度更好保护精神病患者的权利。第一部分对近亲属监护权进行概述,对亲属、近亲属、监护及监护权进行分析,使得近亲属监护权的内涵变得清晰。精神病人近亲属监护权,在我国现有立法条件下,即配偶、父母、子女、兄弟姐妹、祖父母、外祖父母、孙子女、外孙子女等近亲属在精神病人为无民事行为能力或限制行为能力人时,监护他们的人身、财产权益,代理民事行为及民事诉讼行为。近亲属行使监护权时,若违反为了被监护人利益原则,滥用监护权及替代责任情况下承担监护责任。第二部分对近亲属监护权滥用概念进行实证分析。首先对新法的进步之处进行肯定性评价,特别值得一提的是“非自愿住院原则”的确立,在这一领域取得实质性进步,无论监护权还是治疗手段的出发点都是精神病人本身权益的保障,以被监护人为中心的立法才是合理的。紧接着对近亲属监护权滥用的概念进行界定,然后结合案例,对《中华人民共和国精神卫生法》法律条文的分析,得出,尽管经历相当长的立法进程制定出相对适合我国国情及立法现状的法律,仍存在一些不尽人意的地方,痼疾难除,一些问题仍旧没能得到妥善解决。如近亲属监护权过大,被新法的认可,并得到放大、亲属权与监护权权属内容仍旧有混淆的可能,精神病人诉权缺乏实际操作性,难以实现、权利未设时限等。最为突出的问题是新法没有确立司法审查机制,司法的最终宣告权并未体现。以上这些问题,都是立法之后可能产生问题的方面。第三部分,对近亲属监护权规制制度进行探讨并提出建议。首先,精神病人是一个弱势群体,以保护精神病人权益为根本目的对近亲属监护权进行规制,本文对精神病人权利保护的特殊性进行简要分析,对制度构建提供方向指引。其次,借鉴其他国家立法对这一问题的解决方法,对我国下一步立法及实践工作提供可行的制度横向比较。第三,根据第二部分的分析及本部分的结合,提出近亲属监护权诸多问题的对策,构建近亲属监护权规制方式。最后,特别对精神病人诉权进行完善,诉权是权利救济的最后屏障,因此特别说明。
[Abstract]:In order to prevent citizens from being "mentally ill", to strengthen the treatment and relief of mental patients, and to safeguard the right to life and health of mental patients, after 27 years of long legislative process, the "Mental Health Law of the people's Republic of China" finally came out shyly. Those responsible for parental authority will be punished for violating the criminal law. Because there is no legal norm, it is often revealed in practice that cases of "being mentally ill" should not be treated as mental patients for various reasons. The treatment of patients with mental disorders may involve compulsory medical treatment, personal freedom, loss of reputation, and so on; if a crime is constituted, their criminal responsibility will be investigated according to law. After the introduction of Mental Health Law, the focus of this paper is on the regulation of guardianship of mental patients' near relatives, from which the rights of mental patients can be better protected. The first part gives an overview of the custody of near relatives, and analyzes the relationship, close relatives, guardianship and custody, which makes the connotation of custody of near relatives clear. Guardianship of close relatives of mental patients, under the existing legislative conditions of our country, namely spouses, parents, children, brothers and sisters, grandparents, grandchildren, When the mental patient is a person with no capacity for civil action or a person with limited capacity, his or her close relatives, such as grandchildren 'children, have custody of their personal, property rights and interests, acting civil acts and civil litigation acts. In the exercise of guardianship by close relatives, if they violate the principle of guardianship, abuse guardianship and substitute responsibility, they should bear guardianship responsibility. The second part is an empirical analysis of the concept of near relative guardianship abuse. First of all, a positive evaluation of the progress of the new law, notably the establishment of the principle of involuntary hospitalization, which has made substantial progress in this area, The starting point of guardianship and treatment is the protection of the rights and interests of the mental patients themselves, and it is reasonable to legislate with the guardian as the center. Next of all, the concept of abuse of near relative custody is defined, and then the analysis of the legal provisions of the Mental Health Law of the people's Republic of China is combined with a case study. Although it has been through a long legislative process to make laws that are relatively suitable for our country's national conditions and the current situation of legislation, there are still some unsatisfactory places, chronic problems and some problems still not being properly solved. If the near relative custody is too big, is approved by the new law, and is magnified, the right of kinship and the right of guardianship still have the possibility of confusion, the mental patient's right of action lacks the actual operation, is difficult to realize, the right does not have the time limit and so on. The most prominent problem is that the new law does not establish the judicial review mechanism, and the final right of judicial declaration is not reflected. These are the problems that may arise after legislation. The third part discusses the regulation system of near-relative guardianship and puts forward some suggestions. First of all, the mental patient is a vulnerable group, in order to protect the rights of mental patients for the fundamental purpose of the regulation of near relatives custody, this article briefly analyzes the particularity of the protection of the rights of mental patients, and provides guidance to the establishment of the system. Secondly, draw lessons from the legislation of other countries to solve this problem, and provide a feasible system horizontal comparison for the next step legislation and practice in our country. Thirdly, according to the analysis of the second part and the combination of this part, the author puts forward the countermeasures of many problems of the custody of near relatives, and constructs the regulation mode of the custody of near relatives. Finally, the right of action, which is the last barrier of right relief, is especially perfect for mental patients.
【学位授予单位】：福州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.16

【相似文献】