摘 要

二十世紀初期我國已經(jīng)開始步入老齡化社會，這給我國經(jīng)濟發(fā)展、社會發(fā)展、政治發(fā)展帶來了巨大且深遠的影響。老年人監(jiān)護問題在現(xiàn)實社會中的重要性日益凸顯出來，而就目前我國現(xiàn)有的相關法律還不足以解決有關老年人監(jiān)護方面的問題。面對老齡化加劇的世界性大趨勢，加強對老年人的保護，完善我國老年人監(jiān)護制度已經(jīng)迫在眉睫。本文旨在我國現(xiàn)行的監(jiān)護理念的指導下，對如何完善我國的老年人監(jiān)護制度提出建議。

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

首個部分為本文的引言部分。

第一章為老年人監(jiān)護制度的基本理論。主要對監(jiān)護制度的起源、老年人監(jiān)護制度的含義、老年人監(jiān)護制度的特征、老年人監(jiān)護制度的性質等問題進行闡述。

第二章為國外老年人監(jiān)護制度的立法及啟示。主要介紹了德國、日本、英國、美國關于老年人監(jiān)護制度的相關立法，并歸納出國外老年人監(jiān)護制度的啟示。國外老年人監(jiān)護制度對我國的啟示主要有：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；保護方式靈活多變；對意定監(jiān)護制度的統(tǒng)一設立；公法化和社會化的強化。

第三章為我國老年人監(jiān)護制度的缺陷。我國老年人監(jiān)護制度的缺陷主要體現(xiàn)在現(xiàn)行監(jiān)護制度中監(jiān)護理念的落后、現(xiàn)行監(jiān)護制度中監(jiān)護范圍狹窄、意定監(jiān)護制度的缺失、對監(jiān)護人監(jiān)護資格規(guī)定不夠明確、對監(jiān)護人選任規(guī)則脫離現(xiàn)實、監(jiān)護人權利與義務的不均衡、監(jiān)護監(jiān)督機構的缺失等方面。

第四章為完善我國老年人監(jiān)護的必要性。本章明確指出之所以需要完善老年人監(jiān)護制度，是因為這是應對我國老齡化問題嚴峻性的需要、家庭養(yǎng)老功能退化的需要、應對未富先老的社會現(xiàn)狀的需要、維護老年人合法權益的需要、有助于實現(xiàn)社會的代際公平。

第五章為對我國老年人監(jiān)護制度的完善。此段為文章重點段落，本章充分借鑒發(fā)達國家之經(jīng)驗，重點從我國老年人監(jiān)護制度應遵循的理念、擴大受保護成年人之范圍、老年人監(jiān)護人主體方面的完善、完善老年人監(jiān)護的方式、完善老年人監(jiān)護監(jiān)督機制等方面提出了筆者的一些建議。

關鍵詞：監(jiān)護；老年人監(jiān)護；意定監(jiān)護；監(jiān)護人

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)護制度的基本理論·······································15

  （一）監(jiān)護制度的起源·············································15

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

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

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

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

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

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

1、適用對象為老年人············································19

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

3、監(jiān)護的內容側重于對被監(jiān)護人的人身和生活的照顧················19

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

  （四）老年人監(jiān)護制度的性質·······································20

1、監(jiān)護權利說··················································20

2、監(jiān)護義務說··················································20

3、權利義務一體說··············································20

4、監(jiān)護職責說··················································20

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

二、國外老年人監(jiān)護制度的立法及啟示·································22

（一）國外老年人監(jiān)護制度的立法狀況·····························22

1、德國·······················································22

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

     3、英國·······················································24

     4、美國·······················································25

  （二）國外老年人監(jiān)護制度的啟示···································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、保護方式靈活多變············································27

4、對意定監(jiān)護制度的統(tǒng)一設立····································28

5、公法化和社會化的強化········································28

三、我國老年人監(jiān)護制度的缺陷·······································29

  （一）我國老年人監(jiān)護制度的現(xiàn)狀···································29

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

    2、《民法通則意見》··············································30

3、《老年人權益保障法》··········································31

（二）我國老年人監(jiān)護制度存在的缺陷·······························32

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

2、監(jiān)護范圍狹窄···············································33

3、對監(jiān)護人的監(jiān)護資格規(guī)定不夠明確·······························35

4、對監(jiān)護人的選任規(guī)則一定程度上脫離現(xiàn)實·························35

5、監(jiān)護人權利與義務的不均衡····································36

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

7、監(jiān)護監(jiān)督機構的缺失··········································36

四、完善我國老年人監(jiān)護制度的必要性·································37

  （一）應對我國老齡化問題嚴峻性的需要·····························37

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

  （三）應對未富先老的社會現(xiàn)狀的需要·······························39

  （四）維護老年人合法權益的需要···································40

  （五）有助于實現(xiàn)社會的代際公平···································41

五、我國老年人監(jiān)護制度的完善·······································42

  （一）我國老年人監(jiān)護制度應遵循的理念······························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”理念···································43

  （二）擴大受保護成年人監(jiān)護之范圍··································43

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

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

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

3、完善老年人監(jiān)護人的權利和義務·································46

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

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

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

  （五）完善老年人監(jiān)護監(jiān)督機制·····································50

結語·······························································51

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

參考文獻···························································54