我國未成年人監(jiān)護(hù)權(quán)撤銷制度研究
發(fā)布時間：2018-11-26 08:09
【摘要】：未成年人作為社會上的弱勢群體,身心發(fā)展還不健全,認(rèn)識和判斷能力有待提升,在其成長的階段需要來自父母的輔助。如果說孩子是一個家庭的“寶藏”,那么未成年人監(jiān)護(hù)就是對“寶藏”的神圣守護(hù),而父母就是孩子的守護(hù)神。未成年人監(jiān)護(hù)制度作為一項民事法律制度,其目的就是為了維護(hù)未成年人的權(quán)益。然而近年來,父母作為監(jiān)護(hù)人侵害未成年子女權(quán)益的案件時有發(fā)生,對未成年人身心健康造成了嚴(yán)重傷害,從而引起社會各界的廣泛關(guān)注。雖然我國的《民法通則》、《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(試行)》(以下簡稱《民通意見》)、《未成年人保護(hù)法》、《關(guān)于依法處理監(jiān)護(hù)人侵害未成年人權(quán)益行為若干問題的意見》(以下簡稱《意見》)、《反家庭暴力法》以及2017年3月15日通過的《中華人民共和國民法總則》對未成年人監(jiān)護(hù)權(quán)撤銷制度進(jìn)行了一些規(guī)定,但現(xiàn)行的立法規(guī)定仍存在許多不足和缺陷。本文立足于我國國情,以未成年人監(jiān)護(hù)權(quán)撤銷制度的基本理論為出發(fā)點,結(jié)合我國目前立法的規(guī)定和近幾年發(fā)生的典型案例,總結(jié)我國目前立法關(guān)于未成年人監(jiān)護(hù)權(quán)撤銷制度規(guī)定存在的不足,進(jìn)而提出相應(yīng)的完善建議。本文分為三個部分:第一部分,對未成年人監(jiān)護(hù)權(quán)撤銷制度進(jìn)行概述。首先,對監(jiān)護(hù)和未成年人監(jiān)護(hù)進(jìn)行概述,介紹了監(jiān)護(hù)的含義、監(jiān)護(hù)的性質(zhì)、未成年人監(jiān)護(hù)的含義和未成年人監(jiān)護(hù)的歷史進(jìn)程;其次,對未成年人監(jiān)護(hù)權(quán)撤銷進(jìn)行分析,介紹了未成年人監(jiān)護(hù)權(quán)撤銷的含義、未成年人監(jiān)護(hù)權(quán)撤銷的必要性;最后,介紹了未成年人監(jiān)護(hù)權(quán)撤銷制度的基本原則。第二部分,主要論述了我國未成年人監(jiān)護(hù)權(quán)撤銷制度存在的不足。主要包括未成年人監(jiān)護(hù)權(quán)撤銷前不易被發(fā)現(xiàn)、未成年人監(jiān)護(hù)權(quán)撤銷公益訴訟缺失、監(jiān)護(hù)權(quán)撤銷后未成年人的安置缺失制度保障、未成年人監(jiān)護(hù)權(quán)撤銷前缺失防御措施。第三部分,主要論述了完善我國未成年人監(jiān)護(hù)權(quán)撤銷制度的建議。主要有加強(qiáng)事前的干預(yù)及監(jiān)督、積極探索未成年人檢察公益訴訟、完善判后安置規(guī)定、加強(qiáng)事前防御措施建設(shè)。
[Abstract]:As a weak group in the society, minors are not perfect in their physical and mental development, and their abilities of cognition and judgment need to be improved, and they need assistance from their parents in their growing up stage. If the child is the treasure of a family, then the minor guardianship is the sacred guardian of the treasure, and the parents are the guardian god of the child. As a civil legal system, the system of guardianship of minors aims to safeguard the rights and interests of minors. However, in recent years, parents as guardians of minor children's rights and interests cases have occurred from time to time, causing serious harm to the physical and mental health of minors, which has caused widespread concern from all walks of life. Although China's General principles of Civil Law, opinions on the implementation of certain issues concerning the implementation of the General principles of Civil Law of the people's Republic of China (trial) > (hereinafter referred to as the opinions of the Civil Law), the Law on the Protection of minors, "opinions on the handling of certain issues concerning the violation of the rights and interests of minors by guardians according to law" (hereinafter referred to as "opinions"), The Anti-domestic violence Law and the General principles of Civil Law of the people's Republic of China adopted on March 15, 2017 have made some provisions on the revocation system of custody of minors, but the current legislative provisions still have many shortcomings and defects. This article is based on the situation of our country, taking the basic theory of the juvenile custody revocation system as the starting point, combining the current legislative provisions of our country and the typical cases that have occurred in recent years. This paper summarizes the deficiencies of the current legislation on the revocation of custody of minors in our country, and puts forward corresponding suggestions for perfection. This text is divided into three parts: the first part, carries on the outline to the minor guardianship revocation system. First of all, it summarizes the guardianship and the guardianship of minors, introduces the meaning of guardianship, the nature of guardianship, the meaning of guardianship of minors and the historical process of guardianship of minors; Secondly, it analyzes the revocation of custody of minors, introduces the meaning of revocation of custody of minors, the necessity of revocation of custody of minors; finally, introduces the basic principles of revocation system of custody of minors. The second part mainly discusses the deficiencies of the system of revocation of custody of minors in China. It mainly includes the minor custody is not easy to be found before the revocation of custody of minors, the absence of public interest litigation, the protection of the system of minors' placement after the revocation of custody, and the lack of defensive measures before the revocation of custody of minors. The third part mainly discusses the suggestion of consummating the system of juvenile guardianship revocation in our country. It mainly includes strengthening prior intervention and supervision, actively exploring procuratorial public interest litigation of minors, perfecting the provision of post-judgment placement, and strengthening the construction of pre-emptive defense measures.
【學(xué)位授予單位】：河北大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D923.9
[Abstract]:As a weak group in the society, minors are not perfect in their physical and mental development, and their abilities of cognition and judgment need to be improved, and they need assistance from their parents in their growing up stage. If the child is the treasure of a family, then the minor guardianship is the sacred guardian of the treasure, and the parents are the guardian god of the child. As a civil legal system, the system of guardianship of minors aims to safeguard the rights and interests of minors. However, in recent years, parents as guardians of minor children's rights and interests cases have occurred from time to time, causing serious harm to the physical and mental health of minors, which has caused widespread concern from all walks of life. Although China's General principles of Civil Law, opinions on the implementation of certain issues concerning the implementation of the General principles of Civil Law of the people's Republic of China (trial) > (hereinafter referred to as the opinions of the Civil Law), the Law on the Protection of minors, "opinions on the handling of certain issues concerning the violation of the rights and interests of minors by guardians according to law" (hereinafter referred to as "opinions"), The Anti-domestic violence Law and the General principles of Civil Law of the people's Republic of China adopted on March 15, 2017 have made some provisions on the revocation system of custody of minors, but the current legislative provisions still have many shortcomings and defects. This article is based on the situation of our country, taking the basic theory of the juvenile custody revocation system as the starting point, combining the current legislative provisions of our country and the typical cases that have occurred in recent years. This paper summarizes the deficiencies of the current legislation on the revocation of custody of minors in our country, and puts forward corresponding suggestions for perfection. This text is divided into three parts: the first part, carries on the outline to the minor guardianship revocation system. First of all, it summarizes the guardianship and the guardianship of minors, introduces the meaning of guardianship, the nature of guardianship, the meaning of guardianship of minors and the historical process of guardianship of minors; Secondly, it analyzes the revocation of custody of minors, introduces the meaning of revocation of custody of minors, the necessity of revocation of custody of minors; finally, introduces the basic principles of revocation system of custody of minors. The second part mainly discusses the deficiencies of the system of revocation of custody of minors in China. It mainly includes the minor custody is not easy to be found before the revocation of custody of minors, the absence of public interest litigation, the protection of the system of minors' placement after the revocation of custody, and the lack of defensive measures before the revocation of custody of minors. The third part mainly discusses the suggestion of consummating the system of juvenile guardianship revocation in our country. It mainly includes strengthening prior intervention and supervision, actively exploring procuratorial public interest litigation of minors, perfecting the provision of post-judgment placement, and strengthening the construction of pre-emptive defense measures.
【學(xué)位授予單位】：河北大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D923.9
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