协助决定取代成年监护替代决定——兼论民法典婚姻家庭编监护与协助的增设
李霞协助决定取代成年监护替代决定——兼论民法典婚姻家庭编监护与协助的增设
From Substitute Decision-making of Adult Guardianship to Assisted Decision-making
期刊名称：《法学研究》
期刊年份：
作者：李霞
单位：华东政法大学
中文关键词：成年监护;协助决定;替代决定;行为能力;婚姻家庭编
英文关键词：adult guardianship;assisted decision-making;substitute decision-making;legal capacity;the Title of Marriage and Family
中文摘要：
承认心智残疾人有民事行为能力的协助决定制度，与传统民法否认心智残疾人的民事行为能力的替代决定制度根本不同。协助决定制度作为21世纪的新制度，广泛应用于两大法系的立法和实践中且获得了积极的效果。我国民间和司法实践也较为丰富。藉民法典编纂之机，监护应作为一章增设在婚姻家庭编草案收养章之后，区分儿童监护和成年监护，成年监护又区分监护和协助。成年监护之监护一节应增设最后监护原则和最小监护原则，明确监护和协助的适用顺序，从而逐步架空完全监护的适用并为其废除做准备；应赋予残疾人诉权以保障本人的程序参与；应增加“尊重本人自我决定”作为监护人执行职务的标准；应新设特定监护措施。协助一节应对民法总则第33条进行规范续造，增设持续性代理协议和医疗预先指示的规定。
英文摘要：
The assisted decision-making system, which acknowledges the civil capacity of persons with mental retardation, is fundamentally different from the substitute decision-making system in traditional civil law, which denies the civil capacity of persons with mental retardation. As a brand-new system in the 21th century, assisted decision-making system has been widely used in the legislation and practice of the two major legal systems, with positive results. This system is also working very well in China's civil and judicial practices. Now the draft Title of Marriage and Family of the Chinese Civil Code has been released to the public for soliciting comments from various sectors of society. Taking this opportunity, the author of this article puts forward the following suggestions on the improvement of the draft law. Guardianship should be provided for as a separate chapter in the Title on Marriage and Family after the chapter on adoption and this chapter should be divided into two parts:adult guardianship and child guardianship. Adult guardianship should be further divided into monitoring and assistance. The section on monitoring should provide for the final monitoring principle and the minimum monitoring principle and clarify the sequence of application of monitoring and assistance, so as to gradually reduce complete monitoring in preparation for its ultimate abolition; persons with mental disability should be given the permanent right of appeal to ensure their participation in the process; "the respect for self-determination" should be provided for as the standard on the performance of functions by guardians; special guardianship measures should be provided for; and, in the section on "assistance", Article 33 of the General Provisions of the Civil Law should be further elaborated by providing for durable powers of attorney agreements and medical advance directives.
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