论民法典编纂视野下父母监护资格撤销后的国家责任

On the Performance of State Responsibility after Parental Guardianship Is Revoked: From the Perspective of Civil Code Compilation

摘要: 我国《民法通则》规定的监护权撤销制度，已无法满足实践发展的需要。《民法总则》的相关规定，有较为明显的进步，明确了撤销主体与撤销条件，贯彻“尊重被监护人意愿”和“最有利于被监护人”的原则等，但仍有不足之处。例如：如何衔接和落实监护资格撤销的后续问题是目前亟待立法填补的空白。笔者认为，应当更多地引入国家责任。在具体制度上，增设亲权制度，选择亲权与监护并行的立法模式，并构建亲权与监护相衔接的制度，将家庭寄养与未成年人救助结合起来，完善监护监督制度。

Abstract: The stipulations on the revoking of guardianship in China’s General Principles of the Civil Law are no longer able to meet the needs of current legal practices. Though the General Provisions of the Civil Law has made appreciable progress in this respect, such as making explicit stipulations about the subject and conditions of revoking as well as the principles of “respecting the will of the person under guardianship” and “taking measures that best benefit the person under guardianship,” there is still much room for improvement as to how to tackle various practical problems after the revoking takes effect. This paper argues that state responsibility should be introduced into solutions to such problems. It is suggested that at the legislative level a parallel model embracing the paternity system, choice of paternity and guardianship should be established along with a system to ensure a smooth transition from paternity to guardianship in order to combine home-fostering and child-rescuing management to make the system more effective and efficient.