监护制度的检视及委托监护商业化运作

Review of the Guardianship System and the Legislative Conception of Entrusting the Commercial Operation of Guardianship

《民法总则》于2017年正式施行,但是未成年人的监护问题并没有就此得到解决。未成年人的法定监护依然有不到位的地方,委托监护地位模糊,国家监护在现在的福利化程度下步履艰难。未成年人的委托监护问题,尤其是广大留守儿童的委托监护问题,需要多管齐下。委托监护的商业化运作有其必然性,也有其正当性基础。通过将委托监护事宜契约化,运用合同解决委托监护中的权、责、利划分;通过将委托监护人的范围从个人扩大到机构,发挥机构监护的优势,使委托监护从依靠亲情伦理自治走向商业化,依靠制度和契约来规范,以期达到更好的效果。

The General Principles of Civil Law came into effect in 2017.However,the custody of minors has not been resolved.The legal guardianship of minors is still not in place,the status of entrusted guardianship is vague,and the state guardianship is difficult under the present welfare.The entrusted guardianship of minors,especially the entrusted guardianship of children left behind,needs to be multi-pronged.The commercial operation of entrustment guardianship has its inevitability as well as its legitimate basis.By contracting the entrusted guardianship,applying the contract to solve the division of power,responsibility and interest in the entrusted guardianship,and by expanding the scope of the entrusted guardian from the individual to the institution,and giving play to the advantages of institutional guardianship,In order to achieve better effect,entrustment guardianship is changed from relying on the autonomy of kinship ethics to commercialization,on the basis of system and contract.