成年监护制度的现代转向

The Modern Transition of Adult Guardianship System

从世界范围看,成年监护制度目前清晰地呈现出以下发展趋势:从医疗监护模式转向人权监护模式,从全面监护转向部分监护,制度利用者扩大化,保护与支援措施多元化,意定监护为主法定监护为辅。我国成年监护制度立法尚滞后于现代世界主流成年监护制度发展趋势,作为《联合国残疾人权利宣言》的签署国,我国应结合老龄化社会的发展实际,顺应当前国际趋势,确立人权监护模式的成年监护制度,以尊重自我决定、最小限制和能力推定为原则,并扩张制度的利用者范围,以意定监护契约为监护主要设定方式。在法定监护中确立有限监护的中心地位,并在此基础上新设监护、保佐与辅助三种措施。同时完善《老年法》第26条,建立起以吸收《精神卫生法》和相关行政规范为重要组成部分的监护监督体系。

After 60 years worldwide reform, adult guardianship system presents the trends clearly as follows ： the model of guardianship has changed from medical care to human rights ; the range of guardianship has transformed from overall guardianship to partial guardianship; the number of users has enlarged; measures of protection and support have diversified; and legislations have turned to take voluntary guardianship as principle with the supplement of legal guardianship. However, the adult guardianship system in China still falls behind the mainstream around the world. So, as a signatory to the Declaration on the Rights of Disabled Persons, the legislation in China should base on our aging reality, comply with current international trends, and then establish an adult guardianship system adapting human rights guardianship model ; employing the principle of respect for self-decision, minimum limit, and capacity presumption; expanding scale of adult guardianship as main pattern position of limited supervision guardianship users; and taking voluntary of guardianship. Meanwhile, in legal guardianship, and set we should establish the center up a measure system consists of guardianship, protection and assist. Correspondingly, improving the judicial interpretation of the Elder Law, article 26 ; and building up a supervision system of guardianship which takes Mental Health Act and relevant administrative rules as important parts.