《民法总则(草案)》第34、35条评析——监护执行人的撤销与恢复

A Review on Article 34 and 35 of the Consultation Draft of the General Principles of Civil Law of the People's Republic of China——Revocation and Recovery of Guardianship Executor

监护撤销与恢复是监护变更的基础内容与重要环节,《民法总则(草案)》在第34、35条设置了监护执行人撤销与恢复制度,但两个条文沿袭《侵害未成年人意见》的痕迹过重,忽略成年监护与未成年监护的客观差异,在实践上不符合社会现实需要,在理论上不符合监护原理,违背了《残疾人权利公约》等我国参加缔结的公约的要求。应摒弃陈旧的全面监护模式,贯彻部分监护理论;应区分成年监护与未成年监护的不同特点,根据失职与侵害二分法重塑监护撤销制度,明确监护撤销与新监护人指定的独立关系,调整撤销诉讼主体配置,给予法院撤销监护资格,并设置撤销之诉冷冻期。

Guardianship revocation and recovery is a basic component and an important link in the change of guardianship. Article 34 and 35 of the Consultation Draft of the General Principles of Civil Law set up the system of the revocation and recovery of guardianship executor,but the two clauses follow the＂Opinions on Guardian＇s Infringement upon the Rights and Interests of Minors＂and ignore the differences between adult guardianship and minor guardianship. In practice,it does not meet the needs of social reality and in theory,it also does not conform to the principle of guardianship. Its provisions run contrary to conventions which China concluded such as ＂the Convention on the Rights of Persons with Disabilities＂.We should abandon the outdated comprehensive guardianship,carry out partial guardianship. We should differentiate adult guardianship from custody of minors and reshape the system of guardianship based on the dichotomy of dereliction of duty and infringement. The independent relations between guardianship revocation and the designation of a new guardian should be explicit. The subject configuration of litigation revocation needs to be readjusted,by giving the court qualification to revoke guardianship and to establish the frozen period for litigation revocation.