美國(guó)醫(yī)療預(yù)先指示制度研究
發(fā)布時(shí)間：2018-11-02 11:46
【摘要】：我國(guó)已進(jìn)入老年社會(huì),隨著人口老齡化的加劇,生病、失能、死亡的風(fēng)險(xiǎn)加大,而老年人心智的衰退,就需要監(jiān)護(hù)人管理自己的財(cái)產(chǎn)和包括醫(yī)療決定在內(nèi)的人身事項(xiàng)。而我國(guó)現(xiàn)有的監(jiān)護(hù)制度面臨著種種困境,例如監(jiān)護(hù)對(duì)象過(guò)于狹窄未能涵蓋失能老人、監(jiān)護(hù)類型單一且僅限于法定監(jiān)護(hù)、不重視人身監(jiān)護(hù)特別是醫(yī)療監(jiān)護(hù),這些問(wèn)題只有得到解決才能適應(yīng)社會(huì)的發(fā)展。而美國(guó)的醫(yī)療預(yù)先指示制度作為一項(xiàng)典型的意定監(jiān)護(hù)制度則彌補(bǔ)了我國(guó)成年監(jiān)護(hù)制度的不足。醫(yī)療預(yù)先指示制度是指行為人在具有完全行為能力時(shí)根據(jù)本人的意愿通過(guò)設(shè)立生前預(yù)囑或委托醫(yī)療行為代理人的方式為本人在失能后行使人身監(jiān)護(hù)權(quán)。醫(yī)療預(yù)先指示分為生前預(yù)囑和醫(yī)療行為代理。它針對(duì)的監(jiān)護(hù)對(duì)象廣泛,同時(shí)是專門針對(duì)人身監(jiān)護(hù)中的醫(yī)療決定而被立法者創(chuàng)設(shè)的,能切實(shí)維護(hù)被監(jiān)護(hù)人的合法權(quán)益。因此引入醫(yī)療預(yù)先指示制度勢(shì)在必行。本文旨在通過(guò)對(duì)美國(guó)的醫(yī)療預(yù)先指示制度進(jìn)行深入研究,探索美國(guó)的成年監(jiān)護(hù)制度,同時(shí)嘗試構(gòu)建我國(guó)的監(jiān)護(hù)制度特別是意定監(jiān)護(hù)制度,希望能使我國(guó)的監(jiān)護(hù)制度更適應(yīng)社會(huì)的發(fā)展。 第一部分是介紹美國(guó)的醫(yī)療預(yù)先指示制度根源及概念分類。美國(guó)的醫(yī)療預(yù)先指示制度開始于20世紀(jì)70年代,它讓人們有了提前表達(dá)自己醫(yī)療意愿的機(jī)會(huì)。此制度分為生前預(yù)囑和醫(yī)療行為代理,是美國(guó)成年意定監(jiān)護(hù)的重要組成部分。此外,該制度著眼于被監(jiān)護(hù)人的人身監(jiān)護(hù),彌補(bǔ)了此前成年監(jiān)護(hù)只關(guān)注財(cái)產(chǎn)監(jiān)護(hù)的漏洞。關(guān)于醫(yī)療預(yù)先指示制度的法律已經(jīng)很健全,經(jīng)過(guò)了30多年的實(shí)踐也已發(fā)展成熟。 第二部分闡述了醫(yī)療預(yù)先指示制度與美國(guó)的成年監(jiān)護(hù)體系。成年監(jiān)護(hù)有狹義和廣義之分。狹義的成年監(jiān)護(hù)制度只包括法定監(jiān)護(hù)即由監(jiān)護(hù)人由法院指定。廣義的監(jiān)護(hù)則分為法定監(jiān)護(hù)和意定監(jiān)護(hù),意定監(jiān)護(hù)更尊重本人的自主決定權(quán),允許被監(jiān)護(hù)人在具有完全行為能力時(shí)自己指定監(jiān)護(hù)人。這部分就是對(duì)美國(guó)法定監(jiān)護(hù)和意定監(jiān)護(hù)的探討。 第三部分是對(duì)我國(guó)現(xiàn)行監(jiān)護(hù)制度的立法分析和檢討。通過(guò)分析我國(guó)《民法總則》有關(guān)監(jiān)護(hù)的規(guī)定,發(fā)現(xiàn)我國(guó)成年監(jiān)護(hù)制度存在著諸多問(wèn)題,比如監(jiān)護(hù)對(duì)象過(guò)于狹窄、監(jiān)護(hù)類型過(guò)于單一、重財(cái)產(chǎn)監(jiān)護(hù)忽視人身監(jiān)護(hù)。為適應(yīng)老年社會(huì)的到來(lái),監(jiān)護(hù)制度改革勢(shì)在必行。 最后一部分對(duì)我國(guó)的成年監(jiān)護(hù)制度的完善提出了建議。通過(guò)第一部分對(duì)醫(yī)療預(yù)先指示制度的介紹,已經(jīng)認(rèn)識(shí)到意定監(jiān)護(hù)、人身監(jiān)護(hù)的重要性。我國(guó)需要構(gòu)建意定監(jiān)護(hù)制度、完善人身監(jiān)護(hù)同時(shí)還要加強(qiáng)對(duì)監(jiān)護(hù)人的監(jiān)督。
[Abstract]:With the aggravation of the aging population, the risk of illness, disability and death is increased in China, and the mental decline of the elderly requires guardians to manage their own property and personal matters, including medical decisions. However, the existing guardianship system in our country is faced with various difficulties, such as too narrow the object of guardianship can not cover the disabled old people, the type of guardianship is single and only limited to legal guardianship, and no attention is paid to personal guardianship, especially medical guardianship. These problems can only be solved in order to adapt to the development of society. As a typical voluntary guardianship system, the medical predirection system in the United States makes up for the deficiency of the adult guardianship system in our country. The system of medical predirection refers to the person exercising personal guardianship after his disability through the establishment of living wills or the entrustment of medical behavior agent according to his will when he has complete capacity. Medical preinstruction is divided into living wills and medical behavior agents. It aims at a wide range of guardianship objects and is created by the legislator specifically for medical decisions in personal guardianship, which can safeguard the legal rights and interests of the guardians. Therefore, it is imperative to introduce the system of medical predirection. The purpose of this paper is to explore the adult guardianship system of the United States through the in-depth study of the system of medical pre-instruction in the United States, and to try to construct the guardianship system of our country, especially the system of determined guardianship. Hope to make our country's guardianship system more suitable for the development of society. The first part is to introduce the origin and conceptual classification of the medical predirection system in the United States. The medical predirection system in the United States began in the 1970s, giving people the opportunity to express their medical will in advance. This system, divided into living wills and medical behavior agents, is an important part of adult guardianship in the United States. In addition, the system focuses on guardianship of the person under guardianship, filling the loophole in which adult guardianship focused only on property custody. The law on medical predirection system has been perfect, and has been developed after more than 30 years of practice. The second part expounds the system of medical predirection and American adult guardianship system. Adult guardianship is divided into narrow sense and broad sense. The narrow system of adult guardianship includes only legal guardianship, that is, the guardian is appointed by the court. The broad sense of guardianship is divided into legal guardianship and free guardianship. This part is the legal guardianship of the United States and determined guardianship. The third part is the legislative analysis and review of the current guardianship system in China. By analyzing the regulations of guardianship in the General principles of Civil Law in China, it is found that there are many problems in the adult guardianship system of our country, such as too narrow objects of guardianship, too single type of guardianship and neglect of personal guardianship. In order to adapt to the arrival of the elderly society, the reform of guardianship system is imperative. The last part puts forward some suggestions on the perfection of adult guardianship system in China. Through the introduction of the system of medical predirection in the first part, the importance of free guardianship and personal guardianship has been recognized. Our country needs to construct the system of determined guardianship, perfect personal guardianship and strengthen the supervision of guardians.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D923;D971.2
本文編號(hào)：2305923
[Abstract]:With the aggravation of the aging population, the risk of illness, disability and death is increased in China, and the mental decline of the elderly requires guardians to manage their own property and personal matters, including medical decisions. However, the existing guardianship system in our country is faced with various difficulties, such as too narrow the object of guardianship can not cover the disabled old people, the type of guardianship is single and only limited to legal guardianship, and no attention is paid to personal guardianship, especially medical guardianship. These problems can only be solved in order to adapt to the development of society. As a typical voluntary guardianship system, the medical predirection system in the United States makes up for the deficiency of the adult guardianship system in our country. The system of medical predirection refers to the person exercising personal guardianship after his disability through the establishment of living wills or the entrustment of medical behavior agent according to his will when he has complete capacity. Medical preinstruction is divided into living wills and medical behavior agents. It aims at a wide range of guardianship objects and is created by the legislator specifically for medical decisions in personal guardianship, which can safeguard the legal rights and interests of the guardians. Therefore, it is imperative to introduce the system of medical predirection. The purpose of this paper is to explore the adult guardianship system of the United States through the in-depth study of the system of medical pre-instruction in the United States, and to try to construct the guardianship system of our country, especially the system of determined guardianship. Hope to make our country's guardianship system more suitable for the development of society. The first part is to introduce the origin and conceptual classification of the medical predirection system in the United States. The medical predirection system in the United States began in the 1970s, giving people the opportunity to express their medical will in advance. This system, divided into living wills and medical behavior agents, is an important part of adult guardianship in the United States. In addition, the system focuses on guardianship of the person under guardianship, filling the loophole in which adult guardianship focused only on property custody. The law on medical predirection system has been perfect, and has been developed after more than 30 years of practice. The second part expounds the system of medical predirection and American adult guardianship system. Adult guardianship is divided into narrow sense and broad sense. The narrow system of adult guardianship includes only legal guardianship, that is, the guardian is appointed by the court. The broad sense of guardianship is divided into legal guardianship and free guardianship. This part is the legal guardianship of the United States and determined guardianship. The third part is the legislative analysis and review of the current guardianship system in China. By analyzing the regulations of guardianship in the General principles of Civil Law in China, it is found that there are many problems in the adult guardianship system of our country, such as too narrow objects of guardianship, too single type of guardianship and neglect of personal guardianship. In order to adapt to the arrival of the elderly society, the reform of guardianship system is imperative. The last part puts forward some suggestions on the perfection of adult guardianship system in China. Through the introduction of the system of medical predirection in the first part, the importance of free guardianship and personal guardianship has been recognized. Our country needs to construct the system of determined guardianship, perfect personal guardianship and strengthen the supervision of guardians.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D923;D971.2
【參考文獻(xiàn)】
相關(guān)期刊論文 前4條
1 李霞;;意定監(jiān)護(hù)制度論綱[J];法學(xué);2011年04期
2 孫海濤;趙國(guó)棟;;意定監(jiān)護(hù)制度比較研究及借鑒[J];前沿;2009年01期
3 李霞;成年后見制度的日本法觀察——兼及我國(guó)的制度反思[J];法學(xué)論壇;2003年05期
4 孫也龍;;精神障礙患者的預(yù)先指示權(quán)與自愿治療[J];中國(guó)心理衛(wèi)生雜志;2013年04期
，本文編號(hào)：2305923
本文鏈接：http://sikaile.net/falvlunwen/fashilw/2305923.html
最近更新
教材專著
