Abstract:
Our country and the legal consequences to the requirement of
guardians guardianship duties such as regulations mainly in the civil code
article 34 to 36, but provision rules are summarized and form, fulfill their
duties of guardianship for the guardian way is not clear, principles, regulations
and fulfill their duties of guardianship for the guardian is no general judgment
standard. At the same time, the guardianship supervision system has not been
established in China, and the legal consequences of the improper performance
of guardianship duties by guardians are also relatively vague. In order to ensure
that the guardianship system gives full play to its due effect, this paper intends
to analyze the principle of the guardianship duty fulfilled by the guardian and
the legal consequences of the guardian’s violation of the guardianship duty
from the perspective of interpretation theory, and combine with the advanced
legislative experience outside the territory to envisage the construction of an
effective guardianship supervision system.
我国对于监护人履行监护职责的要求及法律后果等规定主要在《民法典》第34条至36条,但条文规定过于概括和形式,对于监护人履行监护职责的方式、原则规定不明确,对于监护人履行监护职责是否不当缺乏一般性判断标准。同时,由于我国尚未建立监护监督制度,且对于监护人不当履行监护职责的法律后果规定也较为模糊。为了保证监护制度充分发挥其应有效果,本文拟从解释论的角度对于监护人履行监护职责的原则,监护人违反监护职责的法律后果进行分析,并结合域外先进立法经验,设想构建有效的监护监督制度。