摘 要

二十世紀(jì)初期我國(guó)已經(jīng)開(kāi)始步入老齡化社會(huì)，這給我國(guó)經(jīng)濟(jì)發(fā)展、社會(huì)發(fā)展、政治發(fā)展帶來(lái)了巨大且深遠(yuǎn)的影響。老年人監(jiān)護(hù)問(wèn)題在現(xiàn)實(shí)社會(huì)中的重要性日益凸顯出來(lái)，而就目前我國(guó)現(xiàn)有的相關(guān)法律還不足以解決有關(guān)老年人監(jiān)護(hù)方面的問(wèn)題。面對(duì)老齡化加劇的世界性大趨勢(shì)，加強(qiáng)對(duì)老年人的保護(hù)，完善我國(guó)老年人監(jiān)護(hù)制度已經(jīng)迫在眉睫。本文旨在我國(guó)現(xiàn)行的監(jiān)護(hù)理念的指導(dǎo)下，對(duì)如何完善我國(guó)的老年人監(jiān)護(hù)制度提出建議。

本文以“老年人監(jiān)護(hù)制度研究”為選題進(jìn)行研究，文章一共由五個(gè)部分組成。

首個(gè)部分為本文的引言部分。

第一章為老年人監(jiān)護(hù)制度的基本理論。主要對(duì)監(jiān)護(hù)制度的起源、老年人監(jiān)護(hù)制度的含義、老年人監(jiān)護(hù)制度的特征、老年人監(jiān)護(hù)制度的性質(zhì)等問(wèn)題進(jìn)行闡述。

第二章為國(guó)外老年人監(jiān)護(hù)制度的立法及啟示。主要介紹了德國(guó)、日本、英國(guó)、美國(guó)關(guān)于老年人監(jiān)護(hù)制度的相關(guān)立法，并歸納出國(guó)外老年人監(jiān)護(hù)制度的啟示。國(guó)外老年人監(jiān)護(hù)制度對(duì)我國(guó)的啟示主要有：新制度在理論和基本原則上具有同一性；禁治產(chǎn)宣告制度得以廢止；保護(hù)方式靈活多變；對(duì)意定監(jiān)護(hù)制度的統(tǒng)一設(shè)立；公法化和社會(huì)化的強(qiáng)化。

第三章為我國(guó)老年人監(jiān)護(hù)制度的缺陷。我國(guó)老年人監(jiān)護(hù)制度的缺陷主要體現(xiàn)在現(xiàn)行監(jiān)護(hù)制度中監(jiān)護(hù)理念的落后、現(xiàn)行監(jiān)護(hù)制度中監(jiān)護(hù)范圍狹窄、意定監(jiān)護(hù)制度的缺失、對(duì)監(jiān)護(hù)人監(jiān)護(hù)資格規(guī)定不夠明確、對(duì)監(jiān)護(hù)人選任規(guī)則脫離現(xiàn)實(shí)、監(jiān)護(hù)人權(quán)利與義務(wù)的不均衡、監(jiān)護(hù)監(jiān)督機(jī)構(gòu)的缺失等方面。

第四章為完善我國(guó)老年人監(jiān)護(hù)的必要性。本章明確指出之所以需要完善老年人監(jiān)護(hù)制度，是因?yàn)檫@是應(yīng)對(duì)我國(guó)老齡化問(wèn)題嚴(yán)峻性的需要、家庭養(yǎng)老功能退化的需要、應(yīng)對(duì)未富先老的社會(huì)現(xiàn)狀的需要、維護(hù)老年人合法權(quán)益的需要、有助于實(shí)現(xiàn)社會(huì)的代際公平。

第五章為對(duì)我國(guó)老年人監(jiān)護(hù)制度的完善。此段為文章重點(diǎn)段落，本章充分借鑒發(fā)達(dá)國(guó)家之經(jīng)驗(yàn)，重點(diǎn)從我國(guó)老年人監(jiān)護(hù)制度應(yīng)遵循的理念、擴(kuò)大受保護(hù)成年人之范圍、老年人監(jiān)護(hù)人主體方面的完善、完善老年人監(jiān)護(hù)的方式、完善老年人監(jiān)護(hù)監(jiān)督機(jī)制等方面提出了筆者的一些建議。

關(guān)鍵詞：監(jiān)護(hù)；老年人監(jiān)護(hù)；意定監(jiān)護(hù)；監(jiān)護(hù)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 錄

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

一、老年人監(jiān)護(hù)制度的基本理論·······································15

  （一）監(jiān)護(hù)制度的起源·············································15

1、羅馬法上的監(jiān)護(hù)制度··········································15

2、近代民法中的監(jiān)護(hù)制度········································16

（二）老年人監(jiān)護(hù)制度的含義·······································17

1、監(jiān)護(hù)制度的含義··············································17

2、老年人監(jiān)護(hù)制度的含義········································17

（三）老年人監(jiān)護(hù)制度的特征·······································19

1、適用對(duì)象為老年人············································19

2、屬于成年人監(jiān)護(hù)制度的范疇···································19

3、監(jiān)護(hù)的內(nèi)容側(cè)重于對(duì)被監(jiān)護(hù)人的人身和生活的照顧················19

4、監(jiān)護(hù)方式的特殊性············································19

  （四）老年人監(jiān)護(hù)制度的性質(zhì)·······································20

1、監(jiān)護(hù)權(quán)利說(shuō)··················································20

2、監(jiān)護(hù)義務(wù)說(shuō)··················································20

3、權(quán)利義務(wù)一體說(shuō)··············································20

4、監(jiān)護(hù)職責(zé)說(shuō)··················································20

5、筆者的看法···················································21

二、國(guó)外老年人監(jiān)護(hù)制度的立法及啟示·································22

（一）國(guó)外老年人監(jiān)護(hù)制度的立法狀況·····························22

1、德國(guó)·······················································22

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

     3、英國(guó)·······················································24

     4、美國(guó)·······················································25

  （二）國(guó)外老年人監(jiān)護(hù)制度的啟示···································27

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

2、禁治產(chǎn)宣告制度得以廢止······································27

3、保護(hù)方式靈活多變············································27

4、對(duì)意定監(jiān)護(hù)制度的統(tǒng)一設(shè)立····································28

5、公法化和社會(huì)化的強(qiáng)化········································28

三、我國(guó)老年人監(jiān)護(hù)制度的缺陷·······································29

  （一）我國(guó)老年人監(jiān)護(hù)制度的現(xiàn)狀···································29

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

    2、《民法通則意見(jiàn)》··············································30

3、《老年人權(quán)益保障法》··········································31

（二）我國(guó)老年人監(jiān)護(hù)制度存在的缺陷·······························32

  1、現(xiàn)行監(jiān)護(hù)制度中監(jiān)護(hù)理念落后·································32

2、監(jiān)護(hù)范圍狹窄···············································33

3、對(duì)監(jiān)護(hù)人的監(jiān)護(hù)資格規(guī)定不夠明確·······························35

4、對(duì)監(jiān)護(hù)人的選任規(guī)則一定程度上脫離現(xiàn)實(shí)·························35

5、監(jiān)護(hù)人權(quán)利與義務(wù)的不均衡····································36

6、監(jiān)護(hù)人監(jiān)護(hù)資格的規(guī)范不夠明確·······························36

7、監(jiān)護(hù)監(jiān)督機(jī)構(gòu)的缺失··········································36

四、完善我國(guó)老年人監(jiān)護(hù)制度的必要性·································37

  （一）應(yīng)對(duì)我國(guó)老齡化問(wèn)題嚴(yán)峻性的需要·····························37

  （二）家庭養(yǎng)老功能退化的需要·····································38

  （三）應(yīng)對(duì)未富先老的社會(huì)現(xiàn)狀的需要·······························39

  （四）維護(hù)老年人合法權(quán)益的需要···································40

  （五）有助于實(shí)現(xiàn)社會(huì)的代際公平···································41

五、我國(guó)老年人監(jiān)護(hù)制度的完善·······································42

  （一）我國(guó)老年人監(jiān)護(hù)制度應(yīng)遵循的理念······························42

1、“維持本人生活正?；崩砟睢ぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁぁ?2

2、“尊重本人自我決定權(quán)”理念···································43

  （二）擴(kuò)大受保護(hù)成年人監(jiān)護(hù)之范圍··································43

  （三）老年人監(jiān)護(hù)人主體方面的完善·································44

1、完善老年人監(jiān)護(hù)人之資格規(guī)定···································44

2、完善老年人監(jiān)護(hù)人的選任·······································44

3、完善老年人監(jiān)護(hù)人的權(quán)利和義務(wù)·································46

  （四）老年人監(jiān)護(hù)方式的完善········································48

1、引入意定監(jiān)護(hù)制度············································48

2、引入公共監(jiān)護(hù)制度············································49

  （五）完善老年人監(jiān)護(hù)監(jiān)督機(jī)制·····································50

結(jié)語(yǔ)·······························································51

致謝·······························································53

參考文獻(xiàn)···························································54