论意定监护协议准用委托合同——以约束意定监护人为中心

Study on the Application of the Entrustment Contract to Intended Guardianship Agreement--Centering on binding the intended guardian

因立法供给不足,意定监护制度缺乏对意定监护人的制约机制,意定监护协议可准用委托合同规则填补该漏洞。准用委托合同是约束意定监护人的关键,借此既可准用委托合同规则使其受到要式等要件的限制,亦可利用法理明确其作为受托人应承担的职责与义务。意定监护协议对意定监护人权限限制约定的效力宜被肯认,当特别委托与概括委托存疑时,应推定为概括委托。被监护人实质上难以行使任意解除权,意定监护人只有在具备合理理由时方得解除协议,协议外第三人亦可撤销协议。意定监护人受到委托合同中从给付义务和附随义务的约束,具有指示服从、亲自处理、报告与移交等职责,并承担注意、保密、告知、继续处理等义务。

Due to insufficient legislative provisions,the system of intended guardianship lacks a mechanism to regulate the intended guardian,so the Entrustment Contract can be applied to intended guardianship agreement to fill this loophole in law.The application of the entrustment contract is the key to bind the intended guardian,so that the rules of the entrustment contract can be applied to subject the intended guardian to the rules of form and termination,as well as the jurisprudence can be applied to clarify duties and obligations of the intended guardian.The validity of the agreement on the limitation of the powers of the intended guardian in the intended guardianship agreement should be recognised,and when there is doubt about whether an entrustment is a special entrustment or a general entrustment,it should be presumed to be a general entrustment.It is substantially difficult for the ward to exercise the right of arbitrary termination,which means that the intended guardian can only terminate the agreement for reasonable grounds and that a third party of the agreement can also terminate the agreement.The intended guardian is bound by the subordinated obligation and ancillary obligation of the entrustment contract.The intended guardian is responsible to give instructions,to deal with the matter personally,to report and hand it over,and to undertake the obligation of attention,confidentiality,notification and continued handling.