罗马法中的监护豁免权及其后世影响

Immunity of the Guardianship in Roman Law and Its Modern Application

依据罗马法,当监护不具有义务性时,监护人可以拒绝。当监护变为强制性公役后,监护人可以在法律规定的时间内主张豁免权,而法定时间由其住所与法院之间的距离决定。豁免的理由有时是个人原因,有时为各种不同的负担,包括个人负担和公务负担,还有些为单纯的特权。中世纪的监护可以被视作一种公职,在逻辑上具备适用监护豁免权的前提条件。近代监护的公法化能够为监护豁免提供生存土壤。现代民法或效仿罗马法直接在立法中设置监护豁免规定,或将部分豁免原因转变为无监护能力情形。除了官选监护是一种不能擅自变更的强制性义务,父母的法定监护任务基于自然法联系无法拒绝外,我国仍强调监护的亲属性与自治性,故应尊重监护的自治性,允许监护人拒任,但可以在解释论上将豁免理由归为无监护能力情形,确保监护人有监护能力。

In Roman law,when the guardianship is the power,it is not obligatory and the guardian can refuse it.When the guardianship becomes the compulsory public service,the guardian may claim immunity within the time specified by law.The legal time is determined by the distance between his residence and the court.The reasons for immunity are sometimes personal reasons,sometimes different burdens,including personal burdens and official burdens,and some are pure privileges.Guardianship in the Middle Ages can be regarded as a kind of public office.It logically has the prerequisites for the application of guardianship immunity.The public law of guardianship in modern times can provide the living soil for guardianship immunity.Some modern civil law may follow Roman law and directly set guardianship immunity provisions in legislation,and some change part of the reason for immunity into a situation of inability to guardianship.Except that official guardianship is a mandatory obligation that cannot be changed without authorization,the parent's legal guardianship task cannot be rejected based on the connection of natural law,our country still emphasizes the kinship and autonomy in guardianship,the autonomy of guardianship should still be respected and allow the guardian to refuse the guardianship appointment.However,the reason for immunity can be classified as situation of inability to guardianship in terms of interpretation to ensure that the guardian is capable of capable of acting as a guardian.