现代成年监护制度及其对我国的启示

The Modern Adult Guardianship System and Its Significance to China

为适应国际人权新理念及老龄化社会的现实需要,世界各国相继建立了以任意监护为主,法定监护为辅,并以监护监督制度为配套措施的现代成年监护制度。我国应借鉴国外先进的制度经验,以"生活正常化"及"尊重自我决定权"的理念为指导,扩大成年监护制度适用范围,包括但不限于精神障碍者、智力障碍者、身体障碍者。根据成年被监护人判断能力的差异,设立监护、保佐和辅助三个层级的监护类型。任意监护协议与任意监护监督协议相结合以充实任意监护制度,并明确认定监护优先于法定监护适用。建立以监护监督人为主、监护监督机关为辅的监护监督机制。

In order to adapt to the new concept of international human rights and the real needs of the aging society,countries all over the world have set up the modern adult guardianship system, which takes the arbitraryguardianship as principle, the legal guardianship as supplementary, and the guardianship supervisory system assupporting measure. It is necessary for China to learn from the advanced system of other countries. Based on theidea of maintaining the normal life and respecting the self-determination, we should expand the application scopeof the adult guardianship system to more people than the mental disorders, the intellectual disabled, and the physicaldisabled. Three levels of guardianship, that is guardianship, curatorship and assistantship, should be set up inaccordance with the judgment ability of different persons under guardianship. The arbitrary guardianship systemshould be enriched with both the arbitrary guardianship agreement and the arbitrary guardianship and supervisionagreement. It is proposed to take the priority of the arbitrary guardianship to the statutory guardianship and establisha mechanism of guardianship and supervision in which the guardianship supervisor should play a principlerole and the guardianship supervision authority a secondary.