成年人保护制度私法变迁论

The Vicissitude Theory of Private Law of Adult Protection System

传统成年监护制度采全面监护的方式切断了脆弱成年人参与社会交往的渠道。但随着人权理论的进步与人口高龄化日趋严重,以预设有行为能力推定而后为具体个人赋能的协助决定制度产生。由此,对脆弱成年人的保护从传统的'排除性'范式——通过否认或限制行为能力后的监护制度将其隔离于自主决定以外,转向'包容性'范式——最大程度尊重本人意愿的基础上,为其提供协助以支持本人践行法律能力。新范式旗帜鲜明地对旧制度进行了纠正,使本人真正掌控自己的生活,这成为一切张力和矛盾之下最基本的共识。我国可以通过对《民法总则》相关法规范的限缩与扩张解释植入协助决定制度并在编纂婚姻家庭编中予以完善。

The traditional adult guardianship system protects vulnerable adults by cutting off their participation in social interactions by means of comprehensive guardianship.However,with the progress of human rights theory and the increasing aging of the population,the Supported Decision-Making(SDM)came into being.It is characterized by the presumption of sufficient legal capacity,and then supporting a specific individual into decision-making.Protection for vulnerable adults shifts from the traditional'exclusion'paradigm to the'inclusion'paradigm.That is,in the past,they were excluded from independent decision-making by denying or restricting their capacity for action and arranging guardianship,and now they are offered support on the basis of the utmost respect for their will to support them in their legal practice.The new paradigm explicitly corrects the old system so that one could truly in control of his or her life,and this becomes the most basic consensus under current tensions and contradictions.SDM system should be introduced into China civil law through limited or expanded interpretation of related legal norms in general principles of civil law and completed in the marriage and family list.