吸毒人員監(jiān)護(hù)權(quán)的認(rèn)定與變更
發(fā)布時間：2018-07-16 23:14
【摘要】：隨著我國吸毒人員數(shù)量的與日俱增,其未成年子女處于監(jiān)護(hù)缺失的情況也越來越嚴(yán)重,這對他們的成長是非常不利的。吸毒人員對于其未成年子女成長所帶來的負(fù)面影響非常之大,但作為未成年子女的父母又不適宜一概否定其監(jiān)護(hù)人資格。然而現(xiàn)行法律缺乏對吸毒人員作為監(jiān)護(hù)人的資格和監(jiān)護(hù)責(zé)任的明確認(rèn)定,同時也缺乏有效的機(jī)制去及時挽救已經(jīng)處于實際監(jiān)護(hù)缺失的未成年子女。所以要處理吸毒人員監(jiān)護(hù)權(quán)問題,必須在充分了解監(jiān)護(hù)權(quán)概念的基礎(chǔ)上,將吸毒人員作為監(jiān)護(hù)人視為一種單獨的模式,引入“未成年子女利益最大”作為處理吸毒人員監(jiān)護(hù)權(quán)問題的主要原則,并以《民法通則》的監(jiān)護(hù)權(quán)相關(guān)部分、《未成年人保護(hù)法》和《婚姻法》中監(jiān)護(hù)權(quán)相關(guān)條款,以及最高人民法院《關(guān)于貫徹執(zhí)行中華人民共和國民法通則若干問題的意見》作為基本的法律依據(jù),著重分析吸毒人員監(jiān)護(hù)權(quán)的轉(zhuǎn)移和認(rèn)定問題。由于歷史和傳統(tǒng)的原因,我國現(xiàn)有監(jiān)護(hù)權(quán)法律還帶有濃厚的私法性質(zhì),在監(jiān)護(hù)人資格的認(rèn)定上仍然以身份關(guān)系為主要依據(jù)和順位,本文認(rèn)為對于吸毒人員監(jiān)護(hù)人資格的認(rèn)定應(yīng)當(dāng)根據(jù)實際情況出發(fā),針對吸毒人員吸毒行為對其未成年子女可能造成的影響為判斷依據(jù)做出裁決。同時應(yīng)對吸毒人員所必須履行的監(jiān)護(hù)責(zé)任明確界定。如果吸毒人員一人履行監(jiān)護(hù)職責(zé)的,必須有能力承擔(dān)所規(guī)定的所有責(zé)任。如因吸毒造成一部分責(zé)任無力履行的,應(yīng)首先考慮與其他符合監(jiān)護(hù)人資格的人共同行使監(jiān)護(hù)權(quán)或?qū)o力承擔(dān)的部分監(jiān)護(hù)權(quán)委托給他人,否則才視其為喪失監(jiān)護(hù)人資格。對于監(jiān)護(hù)人資格的認(rèn)定,有糾紛的最終都應(yīng)該通過法院裁決。除了法律已經(jīng)規(guī)定的可提起監(jiān)護(hù)權(quán)變更訴訟的人員以外,未成年子女也應(yīng)當(dāng)符合提起訴訟的主體資格。且在沒有適合代理人的情況下,法院應(yīng)當(dāng)從其他符合監(jiān)護(hù)人資格的人中指定合適的代理人。在未成年子女監(jiān)護(hù)屬于實際缺失的情況下,應(yīng)當(dāng)及早采取合法的手段和途徑,通過將監(jiān)護(hù)權(quán)轉(zhuǎn)移給其他有監(jiān)護(hù)資格的人或機(jī)構(gòu),來保護(hù)未成年子女的監(jiān)護(hù)權(quán)益。而監(jiān)護(hù)權(quán)轉(zhuǎn)移制度的有效落實離不開國家公權(quán)力的強(qiáng)制執(zhí)行力和介入干預(yù)。也可以嘗試增設(shè)專門的組織來承擔(dān)這一社會職責(zé)。針對吸毒人員的特殊情況,還應(yīng)當(dāng)充分整合社會各類資源,為吸毒人員恢復(fù)監(jiān)護(hù)人資格提供支持和幫助�？傊�,只有在立法上明確認(rèn)定監(jiān)護(hù)人資格、監(jiān)護(hù)責(zé)任、并建立起有效的監(jiān)護(hù)權(quán)轉(zhuǎn)移制度,才能從根本上解決吸毒人員未成年子女監(jiān)護(hù)缺失的問題,確保他們的健康成長。
[Abstract]:With the increasing number of drug addicts in our country, their minor children are becoming more and more serious in the absence of guardianship, which is very bad for their growth. The negative effects of drug addicts on the growth of their minor children are very large, but their parents, as minor children, are not suitable to deny their guardians in a single way. However, the current law lacks a clear identification of the eligibility and responsibility of the drug addicts as guardians, but also lacks effective mechanisms to save the young children who have been in the absence of actual monitoring. Therefore, to deal with the problem of guardianship of drug addicts, the drug addicts must be fully understood on the basis of the concept of guardianship. As a guardian, the member is regarded as a separate model, introducing the principal principle of "the maximum of the interests of the minor children" as the custody of the drug addicts, and the relevant provisions of the guardianship of the general rules of the civil law, the related provisions of the protection of minors and the guardianship in the marriage law, and the Supreme People's Court on the implementation of the Chinese people. The opinions of the general principles of the civil law of the civil Republic are the basic legal basis, focusing on the analysis of the transfer and identification of the guardianship of drug addicts. Due to historical and traditional reasons, the existing guardianship laws in our country still have a strong private law nature, and the identity relationship is still the main basis and the cis position in the identification of the guardian's qualification. This article holds that the identification of the qualification of the guardian of drug addicts should be based on the actual conditions and the possible impact of drug addicts on their minor children for judgment. At the same time, the responsibility for the guardianship that the drug addicts must perform is clearly defined. If a drug addict performs the duties of guardianship, It is necessary to be able to bear all the responsibilities specified. If a part of the responsibility is unable to be carried out because of drug abuse, it should first consider the joint exercise of guardianship with other persons who are in conformity with the qualifications of the guardian or the part of the guardianship that they can not afford to others, otherwise they shall be deemed to be a loss of guardianship. In the end, the court's decision should be passed. In addition to the law already provided for the alteration of the guardianship litigant, the minor children should be eligible for the subject of the proceedings. And in the absence of a suitable agent, the court shall appoint the appropriate agent from other persons who are eligible for the guardian. When the female guardianship is actually missing, the legal means and ways should be taken early to protect the guardianship rights of the minor children by transferring the guardianship to other persons or institutions with guardianship, and the effective implementation of the transfer system of guardianship is inseparable from the compulsory enforcement force and intervention intervention of the national public power. In view of the special circumstances of drug addicts, we should fully integrate all kinds of social resources to provide support and help for drug addicts to restore the qualifications of their guardians. In a word, only in legislation, the qualification of the guardians, the responsibility of guardianship, and the establishment of an effective custody transfer system can be established. Fundamentally solve the problem of the absence of guardianship of underage children and ensure their healthy growth.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D923
本文編號：2127992
[Abstract]:With the increasing number of drug addicts in our country, their minor children are becoming more and more serious in the absence of guardianship, which is very bad for their growth. The negative effects of drug addicts on the growth of their minor children are very large, but their parents, as minor children, are not suitable to deny their guardians in a single way. However, the current law lacks a clear identification of the eligibility and responsibility of the drug addicts as guardians, but also lacks effective mechanisms to save the young children who have been in the absence of actual monitoring. Therefore, to deal with the problem of guardianship of drug addicts, the drug addicts must be fully understood on the basis of the concept of guardianship. As a guardian, the member is regarded as a separate model, introducing the principal principle of "the maximum of the interests of the minor children" as the custody of the drug addicts, and the relevant provisions of the guardianship of the general rules of the civil law, the related provisions of the protection of minors and the guardianship in the marriage law, and the Supreme People's Court on the implementation of the Chinese people. The opinions of the general principles of the civil law of the civil Republic are the basic legal basis, focusing on the analysis of the transfer and identification of the guardianship of drug addicts. Due to historical and traditional reasons, the existing guardianship laws in our country still have a strong private law nature, and the identity relationship is still the main basis and the cis position in the identification of the guardian's qualification. This article holds that the identification of the qualification of the guardian of drug addicts should be based on the actual conditions and the possible impact of drug addicts on their minor children for judgment. At the same time, the responsibility for the guardianship that the drug addicts must perform is clearly defined. If a drug addict performs the duties of guardianship, It is necessary to be able to bear all the responsibilities specified. If a part of the responsibility is unable to be carried out because of drug abuse, it should first consider the joint exercise of guardianship with other persons who are in conformity with the qualifications of the guardian or the part of the guardianship that they can not afford to others, otherwise they shall be deemed to be a loss of guardianship. In the end, the court's decision should be passed. In addition to the law already provided for the alteration of the guardianship litigant, the minor children should be eligible for the subject of the proceedings. And in the absence of a suitable agent, the court shall appoint the appropriate agent from other persons who are eligible for the guardian. When the female guardianship is actually missing, the legal means and ways should be taken early to protect the guardianship rights of the minor children by transferring the guardianship to other persons or institutions with guardianship, and the effective implementation of the transfer system of guardianship is inseparable from the compulsory enforcement force and intervention intervention of the national public power. In view of the special circumstances of drug addicts, we should fully integrate all kinds of social resources to provide support and help for drug addicts to restore the qualifications of their guardians. In a word, only in legislation, the qualification of the guardians, the responsibility of guardianship, and the establishment of an effective custody transfer system can be established. Fundamentally solve the problem of the absence of guardianship of underage children and ensure their healthy growth.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D923
【參考文獻(xiàn)】
相關(guān)期刊論文 前2條
1 李芳;英國衡平法初探[J];河北法學(xué);2000年01期
2 胡巍;試論監(jiān)護(hù)權(quán)的轉(zhuǎn)移[J];河南省政法管理干部學(xué)院學(xué)報;2003年05期
，本文編號：2127992
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