《民法典》意定监护制度的教义学分析

Analysis of Voluntary Guardianship of Civil Code Based on Legal Dogmatics

《民法典》意定监护制度中协议主体、性质、适用序位、协商内容、监护人职责、成立和生效要件等,有待解释和明确。意定监护源于比较法上的持续性代理权,旨在保障自我决定权,本质是附条件生效的委托监护协议,其适用优先于法定监护。未被宣告行为能力欠缺者均可利用该制度,意定监护人的职责是履行代理人职责和禁止权利滥用,“丧失部分或全部行为能力”宜解释为任意性规范,委托事项、成立和生效要件等由当事人约定。

The Civil Code needs to be clarified including the nature of the voluntary guardianship agreement,the applicable relationship to legal guardianship,the scope of negotiation content,the responsibilities of the guardian,and the relationship between capacity to act and the establishment&effectiveness of the agreement.The voluntary guardianship originates from lasting power of attorney in comparative law,aimed to guarantee the autonomy.It is a conditional entrustment agreement,which takes priority over legal guardianship,and the entrusted matters are fully autonomous by the parties.The duties of the Guardian are to perform entrusted affairs,perform agency duties and prohibit abuse of power.Any person that has not been declared to be deprived of capacity may enter into a voluntary guardianship agreement.“Loss of partial or total capacity to act”should be interpreted as arbitrary norms,and the parties can negotiate on the elements for effectiveness.