自愿监护制度在中国同性关系中的适用

IF 0.9 4区 社会学 Q3 FAMILY STUDIES
Jianghao Xia
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引用次数: 0

摘要

在中国,民法通则中自愿监护制度的建立产生了一个有趣的局面,同性伴侣可以利用这一制度来确定和保护他们的权利和义务。本文通过对同性伴侣在被监护人丧失或部分丧失民事行为能力后自愿签订监护协议的案例进行描述和分析。这一申请允许同性恋者自由指定其同性伴侣为其监护人,在一定程度上弥补了中国现行法律对同性关系法律承认缺乏明确的法定规定的不足。然而,在自愿监护法律规则的适用过程中,也存在着一些现实问题。此外,由于自愿监护制度的立法目的与同性关系的核心要件之间存在明显的不匹配,使得自愿监护制度在同性关系中的适用未能触及同性关系中的关键法律问题,如经济关系问题、子女问题等。鉴于此,本文就现阶段同性伴侣自愿监护制度如何更好地发挥作用以及未来同性伴侣正式监护制度的进一步立法改革提出了几点建议。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The application of the voluntary guardianship regime to same-sex relationships in China
In China, the establishment of the voluntary guardianship regime in the General Rules of the Civil Law produced an interesting situation where same-sex partners may apply this regime to determine and protect their rights and obligations. This article describes and analyses the recent practices in this regard, drawing on several cases where same-sex partners concluded voluntary guardianship agreements to arrange matters after a ward loses or partially loses civil capacity. This application allows homosexuals freely to appoint their homosexual partner as their guardian, which compensates to some extent for the lack of clear statutory provisions regarding the legal recognition of same-sex relationships in current Chinese law. Nevertheless, there exist several practical problems within the process of applying the legal rules of voluntary guardianship. In addition, owing to the distinct mismatch between the legislative purpose of the voluntary guardianship system and the core essentials of same-sex relationships, the application of voluntary guardianship to same-sex relationships fails to touch on the crucial legal issues of same-sex relationships, for example, financial relations issues and children issues. In view of these, several proposals about both what needs to be done to make voluntary guardianship work better for same-sex couples at this stage and further legislative reform of the formalized regime for same-sex couples in the future are offered.
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来源期刊
CiteScore
1.20
自引率
25.00%
发文量
19
期刊介绍: The subject matter of the International Journal of Law, Policy and the Family comprises the following: - Analyses of the law relating to the family which carry an interest beyond the jurisdiction dealt with, or which are of a comparative nature - Theoretical analyses of family law - Sociological literature concerning the family which is of special interest to law and legal policy - Social policy literature of special interest to law and the family - Literature in related disciplines (such as medicine, psychology, demography) which is of special relevance to law and the family - Research findings in the above areas, reviews of books and relevant reports The journal has a flexible policy as to length of contributions, so that substantial research reports can be included.
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