【作者】 刘倩；

【导师】 董翠香；

【作者基本信息】 山东大学 ， 法律（专业学位）， 2013， 硕士

【摘要】 目前,世界范围内人口年龄结构变化的趋势是向老龄化方向发展,这也给老龄化情况严重国家的经济和社会生活带来了很大的挑战,世界上许多国家都采取了积极的应对措施,如英、美、法、德、日等国在法律层面都进行了革新并取得了初步的成果。在老龄化时代迅速到来之时我国的措手不及不仅表现在社会保障层面,法律层面也显现出一定缺陷。虽然新《中华人民共和国老年人权益保障法》(以下简称《老年人权益保障法》)的出台弥补了法律方面以及社会保障方面的某些不足。我国第一部老龄事业发展蓝皮书——《中国老龄事业发展报告(2013)》2月27日在京发布,该蓝皮书指出,“积极应对人口老龄化”应纳入基本国策。这些都表明我国已经从法律层面将应对老龄化的措施上升为国家意志,同时该蓝皮书也指出了新《老年人权益保障法》的修改亮点。但是笔者认为仍有一定努力的空间,使得老年人权益保障或者老年监护能够更加完善。所以本文笔者将结合新的《老年人权益保障法》来论述我国老年监护制度的具体完善。一套完善的法律制度不仅要有立法体例的准确定位,还应有先进的立法理念指引,这样在具体制度制定时才能做到统筹兼顾、考虑周全。但是我国的老年监护制度,无论从立法体例还是立法理念,笔者认为都存在一定不足,在此指引下制定的有关老年监护的规定也自然难以满足现实需求。不可否认的是,新《老年人权益保障法》的出台给老龄化问题的解决带来福音,但其仍缺乏具体实施细则使其在将来的司法实践中略显尴尬,此外对监护人的选任、变更、终止以及监护人的权利等内容新《老年人权益保障法》对老年监护的规定中并未涉及,这些都将成为本文的重点。本文主要采用系统分析的方法,结合我国的实践和立法分析我国完善老年监护的必要性；采取比较分析的方法,通过对国际社会的普遍做法和英美法系与大陆法系国家的具体的立法进步进行分析,从中得到我国完善老年监护制度的启发；同时从具体的制度入手分析我国现存的制度不足,在此基础上进一步完善相关制度。面对我国即将起草的民法典,笔者也期望能够通过本文的分析进一步完善我国民法中的老年监护制度,使得我国现行的法律法规更加适应社会的发展进程,缓解我国人口老龄化的艰难局面,与此同时,也实现了与国际社会对老龄人口的保护标准的接轨。更多还原

【Abstract】 Nowadays, in the worldwide the population age structure tends to become aging, which has brought enormous challenges to the economic and social life of those countries trapped in serious aging situation. Many countries have adopted active counter measures. For example, countries like UK, the United States, Germany and Japan and so on have made relevant reformations which have acquired preliminary results. As the age of aging rapidly approaches, China’s unprepared response can be seen not only from the perspective of the social security level, but the legal aspect which has demonstrated its own defaults, though the new version of "The People’s Republic of China Guarantee Law of the Senior Citizens’Rights and Interests"(hereinafter referred to as "The Guarantee Law of the Senior Citizens’ Rights and Interests") has remedied the defects which have emerged from both the legal and social security aspects. China’s first blueprint regarding the elderly undertakings development which is called "The Report of China’s Elderly Undertakings Development (2013)" was issued in February27th in Beijing. The blueprint has pointed out that the issue of "actively handling with the problem of population aging" shall be incorporated into China’s basic sate policies. All of these measures have indicated that China has laid a much more stress on relevant strategies dealing with the population aging problem as the state will in the legal level. Meanwhile this blueprint has also mentioned the luminous revision points of the new version of "The Guarantee Law of the Senior Citizens’ Rights and Interests". But the writer believes that there still exists room for it to make progress in order to make the guarantee of the senior citizens’ rights and interests or the elderly guardianship much better than ever. So the writer of this thesis will discourse upon how to specifically make our country’s system of elderly guardianship perfect by analyzing in combination with the new version of "The Guarantee Law of the Senior Citizens’ Rights and Interests".A complete and sound system of laws and regulations shall not only have an accurate recognition of the legislative styles, but also be directed by the advanced legislative concept. Only in this way can we assure overall planning and all-around consideration when we formulate concrete schemes. However, the writer holds that there are some defects in China’s elderly guardianship system no matter from the aspect of legislative styles or that of legislative concepts, and regulations about elderly guardianship under the guidance of that system certainly cannot meet the demands of the reality. It cannot be denied that the promulgation of the new version of "The Guarantee Law of the Senior Citizens’Rights and Interests" has brought great benefits for the solution of the aging problem. But what we should be aware of is that this law lacks specific detailed rules for implementation, which would unavoidably render it embarrassing in the future judicial practice. In addition, there are such important aspects which the regulations concerning elderly guardianship of the new version of "The Guarantee Law of the Senior Citizens’ Rights and Interests" has not even cover as the selection and appointment, alteration, termination and rights of guardians. And these aspects will become the emphasis of this thesis’analysis.This thesis mainly uses systematic analysis in combination with our country’s practice and legislation to analyze the necessity of perfecting our country’s elderly guardianship. At the same time, this thesis will also adopt comparative analysis by researching the common international practice and the particular legislative progress made by both the common and civil legal systems so as to inspire China’s effort to perfect the elderly guardianship system. Then it will specifically penetrate into the drawbacks of our current system on the basis of which we can improve relevant defective systems.Faced with the Civil Code which will soon be drafted up in China, the writer also expects that China’s elderly guardianship system in civil law will get much more mature by the means of this thesis’analysis with an intention to get our current laws and regulations more accustomed to the social development course, to relieve the tough situations of China’s population aging. In this sense, it will undoubtedly help China to keep in line with the international standard to protect senior citizens’rights and interests.更多还原