成年监护制度修改趋势探析

修改成年监护制度以适应维护身心障碍者生活的正常化及尊重其自我决定权的新理念,已成为一种时代趋势。我国在制定民法典之际,也应顺应时代朝流,修改和完善我国的成年监护制度,使其更加符合我国的现实需要。     

婚姻家庭法中的儿童最大利益原则

儿童最大利益原则是《儿童权利公约》中规定的原则,是保护儿童权利的根本准则。它确立了一个重要理念,即涉及儿童的所有行为均应以"儿童的最大利益"为首要考虑。婚姻家庭法中如何体现该原则,现行法律存在较多疏漏,尤其在离婚后父母对未成年子女监护权和探视权的行使方面仍然存在许多需进一步完善的地方。     

Unemployment,Guardianship, and Weekday Residential Burglary

The absence of a consistent positive effect of the unemployment rate on the crime rate is perplexing, but it may be partly due to the countervailing effect of guardianship. Using weekly state-level data and a pooled cross-sectional time-series research design, we investigate whether the unemployment rate influences residential burglary. This study contributes to the extant literature by distinguishing between weekday residential burglaries, or those burglaries that occur between the hours of 6 am to 6 pm on weekdays, from weeknight/weekend burglaries. If unemployment increases guardianship because previously employed individuals are now at home during the workday protecting their possessions, the expectation is that the unemployment rate will have an instantaneous negative effect on residential burglaries that transpire during normal working hours. Results buttress the logic associated with the guardianship thesis in that a rise in the unemployment rate only engenders a decrease in weekday residential burglaries.     

STREET NETWORK STRUCTURE AND CRIME RISK: AN AGENT‐BASED INVESTIGATION OF THE ENCOUNTER AND ENCLOSURE HYPOTHESES

Street networks shape day‐to‐day activities in complex ways, dictating where, when, and in what contexts potential victims, offenders, and crime preventers interact with one another. Identifying generalizable principles of such influence offers considerable utility to theorists, policy makers, and practitioners. Unfortunately, key difficulties associated with the observation of these interactions, and control of the settings within which they take place, limit traditional empirical approaches that aim to uncover mechanisms linking street network structure with crime risk. By drawing on parallel advances in the formal analyses of street networks and the computational modeling of crime events interactions, we present a theoretically informed and empirically validated agent‐based model of residential burglary that permits investigation of the relationship between street network structure and crime commission and prevention through guardianship. Through the use of this model, we explore the validity of competing theoretical accounts of street network permeability and crime risk—the encounter (eyes on the street) and enclosure (defensible space) hypotheses. The results of our analyses provide support for both hypotheses, but in doing so, they reveal that the relationship between street network permeability and crime is likely nonlinear. We discuss the ramifications of these findings for both criminological theory and crime prevention practice.     

‘The beneficent and legal godfather’: a history of the guardianship of unaccompanied immigrant and refugee children in Australia, 1946–1975

Abstract

In Australia in 1946, the Immigration (Guardianship of Children) Act was passed. This Act was intended to support the postwar migration to Australia of British children, unaccompanied by their parents, and provided them a guardian in Australia: the Immigration Minister. This key provision of the Act continues into the present, covering all unaccompanied child migrants, including refugees. Starting with the parliamentary debates which occurred at the formation of the Act in 1946, this article traces a history of the Act until its first High Court challenge in 1975. In doing so, a focus is placed on a series of key questions raised by its production of categories: How does the Act construct ideas of migranthood? What do the discussions it has provoked have to say about notions of parenthood and the ideal family? And, finally, what concepts of the child have been produced through this legislative and legal history? Through an examination of archival materials, parliamentary debates, court records, and newspaper coverage, this article explores the discursive productions of the Act, following the understanding that ideas of the family, of parenthood, of guardianship, of migrant status, and of the child are not natural, but instead are historically created and produced, here through racialized techniques of governmentality.     

美国成年监护制度中的调解程序探析

目前世界上越来越多的国家都优先采用调解程序来解决成年监护制度中出现的难题,这是因为成年监护调解程序与成年监护诉讼程序相比具有得天独厚的优势,其主要体现在节约成本、提高效用和促使人际关系的和谐。基于我国成年监护制度的相对不完善,应借鉴美国在这方面的经验构建与我国国情相适应的成年监护制度调解程序。     

Foster children＇s right to family： A description and analysis of the legislative approach in Sweden

This paper emphasizes the foster children＇s right to family life and investigates whether change of custody and guardianship to foster parents is a successful option to achieve this right. Using CRC as the base for my definition of the right to family I will include the right to continuity, well-being and a family environment in the understanding of the term ＂right to family＂ in this article. These rights may, primarily, be fulfilled by the child＇s parents, and, if necessary for the best interest of the child, be complemented or substituted by foster or adoption parents. The analysis of different solutions concerning state interventions will base on Swedish law. In Sweden, a child in need of help or assistance as a result of abuse, neglect, or other inappropriate behavior in the home setting may be helped by the Social Welfare Committee-voluntarily or by a court order-in the child＇s home or a foster home. Other alternatives contain judicial involvement by changing custody and guardianship or making a decision for adoption. Since many years ago, the most commonly used alternative for children needing long term placements outside their homes in Sweden has become foster care. This development of many long-term placements has been criticized for not fulfilling the needs of the children, especially their needs for family continuity, stability and well-being. As a consequence, an amendment to the Social Services Act 200l was enacted in 2003 which states that the Social Services Committee shall consider the ＂permanence＂ of foster care by changing custody and guardianship to the foster parents three years later since a child starts in foster care, and every six months thereafter, as long as the child remains in the foster parents＇ care. Assuming that the foster parents are fit and willing to become custodians and guardians, and the child views the foster home as his or her home, the District Court can decide to change the custody and the guardianship to the foster parents. The assessment is to be based solely on the best interest of the child, and not on the fitness or wishes of the original custodian. However, can changing the custody and guardianship assist foster children＇s right to family？ This paper elaborates on this question by describing a legal reform in Sweden.     

The Review of Victoria's Guardianship Legislation: State Policy Development in an Age of Human Rights

This article considers the Victorian government's decision to review the state's guardianship legislation and notes the significant place international human rights developments are playing in that review. The article recognises the opportunities these developments present for reworking the guardianship legislation to increase the autonomy and decision-making power of people with disabilities, but also considers the challenge these developments present to ensuring that society continues to protect its most vulnerable citizens.     

浅议痴呆老人监护制度的完善

我国现行监护制度已初具规模，但对于痴呆老人监护制度的研究尚属空白，存在着诸多的欠缺与滞后。为积极应对人口老龄化的挑战，也为了和国际接轨，笔者借鉴国外先进的立法经验，结合我国的具体情况，从接受新的立法理念、改革立法例、引进意定监护制度、明确规定监护双方权利义务、设立监护监督机构等几方面对完善我国监护制度提出几点建议。     

论老年人任意监护制度

我国《老年人权益保障法》第26条确立了老年人任意监护制度,适应了人口老龄化问题突出、人权保障观念深化的时代背景,融入保障身心障碍者福利理念,弥补了老年人监护制度方面的立法空白.但是我国新确立的老年人任意监护制度仍存在受监护对象狭窄、缺乏具体实施办法、监护监督机制不健全等问题.针对我国老年人任意监护制度中存在的问题,该制度中关键的老年人委托监护合同与任意监护监督制度的配套规则亟需完善.