中国社会面临着老龄化和少子化的现状,意定监护近年来备受理论和 实务关注. 意定监护制度入法已十余年,法律条文、制度实践和学术研究 等多方面,都反应出了该制度仍存在定位不清晰、条文内容简单和配套 制度缺乏等问题,折射出域外制度本土化的文化困境. 应明确意定监护属 于委托协议、不同于赡养和扶养义务、优先适用于法定监护等. 未来应将 意定监护的成立和生效,去除与行为能力宣告的关联;增设意定监护的 监督;并关注意定监护本土化过程中,与社会制度和传统文化的融合.
Facing the current situation of aging and fewer children, Chinese intentional guardianship has received much theoretical and practical attention in recent years. Although the relevant laws have been in force for more than ten years, the legal provisions, system practice and academic research reflect that the system still has problems such as unclear positioning, simple provisions and lack of supporting systems, which reflects the cultural dilemma of localization of foreign systems. It should be made clear that guardianship belongs to an entrustment agreement, is different from maintenance and maintenance obligations, and has priority over legal guardianship. In the future, the establishment and effectiveness of voluntary guardianship should be removed from the connection with the declaration of capacity; Add supervision of voluntary guardianship; It also pays attention to the integration with social system and traditional culture in the process of localization of custody.