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在我国《民法总则》颁布之前,我国民法规定中取得监护人资格的方式有两种:一种是法定监护,另一种是指定监护。而根据《民法总则》的规定,对于通过遗嘱的方式取得监护权的规定,在我国尚属首次。但从世界范围来看,有些发达国家或法治文明先进的国家,通过遗嘱的方式取得监护权早已存在并已被其本国公民适用。而我国司法机关要适用这一法律规定进行裁判或公民要充分行使这一法律赋予的权利,则需要对这一规定进行充分的了解,掌握其内涵所在,释明其法理要求,明确其内容规定。只有这样才能在适用该规定时尽量避免或减少出现问题。
Before the promulgation of the “General Provisions of Civil Law” in our country, there are two ways to obtain guardianship qualifications in our country’s civil law provisions: one is legal custody and the other is designated guardianship. According to the “General Provisions of Civil Law,” the provision of guardianship by means of wills is the first time in our country. However, judging from the perspective of the world, some developed countries or countries with advanced civilizations based on the rule of law have obtained their guardianship by means of wills and have already been applied by their own citizens. However, judiciary in our country should apply this law to conduct referees or citizens should fully exercise the rights conferred by this law. Therefore, it is necessary to have a full understanding of this provision and grasp its connotation, clarify its legal requirements, and clarify its contents . The only way to avoid or reduce problems when applying this provision.