On The Adult Guardianship System

Adult guardianship system, as opposed to minor custody system, is an old private system which has been essential to civil law system since the emergence of Roman Law. According to Chinese civil law, adult guardianship system is only involved in the regime of supervision and protection intended for personal rights, property and other rights and interests of the adults suffering from impaired intelligence, mental disorders or dementia. For a long time, Chinese researchers and legislators have focused on minor custody system and failed to carry out comprehensive and systematic research into guardianship system about special adult subjective. This treatise has the following merits: 1.In the light of Chinese legislation of civil law, it's a complete new research topic dealing with a thorough and systematic study of the basic theory of Chinese private law and a pioneer research on relevant theories of Chinese private law. Up to now, there has been no systematic research on the said system in China and we lack firm theoretical basis. Accordingly, we don't boast complete and perfect relevant laws and regulations, which mean we don't have a consummate system. This treatise is involved in the basis systems of subjective, incompetence, agency and protection of the incompetent adults, all of which are included in private law system. At the same time, this treatise refers briefly to something about social security system, mental hygiene legal system and civil action legal system, which have the characteristics of public law. 2.This research topic has essential and practical significance and can be a useful supplement to the great legislation course of Chinese civil code. Meanwhile, this topic offers firm theoretical and legislative basis. The various preliminary draft of Chinese civil code fail to reform and perfect traditional Chinese adult guardianship system and pay little attention to the reform of adult guardianship system originating in the 1960s and 70s in some other countries. Furthermore, only supplementing the current system with what it lacks, Chinese traditional adult guardianship system overlooks its close connection with the present situation of international human right protection, and therefore loss the support of modern concepts. In consideration of the defects mentioned above, complete, systematic and deep-going research is done into this research topic and the result of the research is reflected by concrete legal regimes, with concrete legal norms in accordance with the design of the regimes, reasons for legislation and legislative examples. 3.The research topic copes with serious social problems of China. The United Nations proclaimed that China became an aging society in 2000. Pressing and global, the rapid aging of population in the 21st century is a serious and complete new problem, which hinder the development of economic, especially that of developing countries. As a developing country, China encounters in advance the same problems, as have taken place in advanced countries, on care, nursing, assistance and cure for the old, as well as the management of their property. These problems are so complicated and comprehensive that, in order to resolve them, we need to constitute various new systems by means of macro-legislation and system policy. However, the research into the aging problems is focused on sociology, economics, demography and medicine while no research on this problem is carried out on basis of private law. Not only does the resolution of the of the aging problem depend on the development of sociology and the science of law, but also it is a necessary research topic of the science of private law. So the research on adult guardian system would be a major contribution towards the science of private law and provide regimes of private law for an aging society. 4.The topic provides detailed and complete legal rules for application of the law. Four articles in General Principle of Civil Law of the People's Republic of China deal with adult guardianship system and minor guardianship system while only eleven articles in the Judicial Interpretation issued by the supreme people's court deal with the said systems. This situation makes it inconvenient to apply the law. Moreover, the fact leading to adult guardianship and the responsibility to the guardian have always caused knotty problems with regard to legislation and application of the law. So the research, in accordance with everyday practice among the Chinese people, engage in completing and perfecting the judicial interpretation by means of substantial evidence research. 5.Adult guardianship system complies with the legislative momentum of the advanced countries. The system responds to the documents issued by the United Nations such as Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care, Declaration on the Rights of Mentally Retarded Person and World Program of Action concerning Disabled Persons).The completion of this research topic will offer firm theoretical and legislative basis for the formulation of relevant regimes of Chinese Civil Code. Since the promulgation of General Principle of Civil Law in 1987, the adult guardianship system has not been revised while, since the second half of the 20th century, the countries with the two major legal families have effected large-scale reform of adult guardianship system involved with values and constitution of regimes. With regard to the Continental legal system, the reform of adult guardianship system originating in France in 1968 triggered the later reform of Germany, Sweden, Austria, Quebec of Canada, Mongolia and Japan. In the light of the common law system, the reform of the system originating in Australia started a succession of responses of Britain, the United States, Canada and New Zealand while the movement of revising the law even affected Mongolia, Viet Nam and Taiwan region of China. As a result of the creation of the new adult guardianship systems of Germany and Japan, the revision of the laws and regulation together with the promulgation of new ones formed and changed more than 300 articles in either country. Countries with common law system formulate new rules and promulgate senior laws following the example of countries with continental legal system. The reason for this trend is that, with the development of human right movement, the international community has extended the protection for weak groups from children and women to all kinds of disabled adults and the persons of venerable age. The United Nations has treated the protection of the human right of the disabled and the old as human right problems, the report on which are submitted to each general assembly of the United Nations for review. According to the United Nations, the resolution of the problem serves as the criterion for evaluating the situation of human right protection of each country ,therefore, as a key issue of the legislation policy of each state and, furthermore, as private law tactics and corresponding measures with which the human beings will cope with the serious social problem of aging of population in the 21st century.With regard to the system structure, the continental legal family and the common law family are different from each other and have their own characteristics. In the light of continental legal system, the discriminatory legal terms have been left out. The practice of declaring incompetence of the subjects in advance before offering protection has disappeared. Instead, the new institution makes efforts to protect the disabled and help them to stand up in society. Various flexible measures taken to protect the disabled, satisfying their individual needs, have taken the place of the previous inflexible and mechanical measures. As to the common law system, the principle that he, who is incompetent, shall be deprived of his right of agency has been cut out in order to meet the needs of protecting the old. A new regime named "enduring power of attorney" has been formed as the core of the new guardianship system. In short, the new adult guardianship system of the advanced countries focus on maintaining and respecting the autonomy of the principle. In other words, without being deprived of his competence, the principle can live a common and normal life of his own free will with the help of society. The principle's right to decide his own life is greatly respected, which can maintain their enthusiasm, not only in regard to the protection of their property, but also their personal. That is to say, predicated on the respect to the principle's self-decision, assistance is offered when necessary.The two major legal families pursue the same goal of respecting and protecting human rights. In the light of adult guardianship system, although the forms of regime of the two legal systems are different, they reach the same goal by different routes. They have the same values and ideas, that is, respecting the right of self-determination, the normalization of the individual's life and improving their remaining competence. The major idea is always that human rights and the freedom of self-determination of the disabled adult should be protected so that they can take part in normal social life without being discriminated on an equal footing.In China, legislations concerning adult guardianship can be found mainly in the general principles of the civil law. But, limited to the forms of regime itself and to the living conditions of the society and the level of cognition at the time, current adult guardianship system can not meet the demands by many new phenomena and follow the trend of the international legal systems. Along with the approaching of aging society and the heightening concern over the welfare of people with disabled persons and mental disorders, concerning their living conditions, preserving their basic human rights, protecting their personal rights and balancing the safety of trade, reforms of adult guardianship system is becoming necessary.The treatise consists with seven parts: preface of the paper, the first chapter distinguishes and defines connotations and extensions of general concepts, and differences and relationships with other legal systems. In China, namely adult guardianship system is only one doctrinal concept. Adult guardianship system on legislation refers to the private system of protecting and guarding the body, property and lawful rights and interests of people with (adult) mental disorders(including senile dementia); the second chapter deals with the history origins of the adult guardianship system. Through reviewing the guardianship and care and assistance systems, we can root out the conception changes from emphasizing protecting property rights to protecting the person, which enlightens the current adult guardianship system in our country. In addition, it summarizes the theoretical research on the adult guardianship system. Up until now, in China, the systemic study on it is still blank, and the theory basic research is weak. A Relative productions of study are limited to mend the contents of the current system, and is short of systemic and intensive study concerning social backgrounds and trends. Therefore, some conclusions need be identified fully. One or two viewpoints need go behind. In addition, the knowledge about materials of overseas system still need further occupy and introduce; the third chapter introduces and observes the adult guardianship system abroad. Firstly, simply introduces the old system of the two legal families, and analyzes problems of social actual effects when used and the system itself. We use it for reference when making the current system.. As a result, the problems lying in the system leads to the current adult guardianship system directly in our country. Secondly, through generally viewing many countries' new systems after reforming, perspective new system social backgrounds and reasons of the reform, possible trend will come through an analysis of operation result of the new system. Relative productions of study are limited to mend the contents of the current system, and is The forth chapter focuses on commenting and analyzing the current adult guardianship system in our country. Through contrasting to the systems of two law families in advanced countries, integrating with circs of our current system running, parsing the problems existing in our current system, and further analyzing sticking points of the existing problems, we point out the main problems of our current system: There are only four articles about the guardianship systems in our General Principles of Civil Law; the main limitations lie in theory values which are not renovated. Thus, the idiographic contents can only follow the same old disastrous road of old law of Japan and German, which manifests in two aspects on General characters and idiographic contents:In general, in the design of the adult guardianship system, there is a clear emphasis and neglectance: emphasizes responsibilities of family and neglects responsibilities of country; emphasizes guardianship of relatives and neglects guardianships of society; emphasizes personal autonomy and neglects public interference; emphasizes inherent traditions and neglects successive civilizations; emphasizes relationships of maintenance and neglects systems of guardianships; emphasizes obligations of local units and neglects public interests safeguards of governments; emphasizes body guardianships and neglects property guardianships.In the idiographic contents, that shows in the following aspects:The first, it excessively pursues orders of trade and neglects the free wills of principles. Some designs for protection orders of trade adopt compelled guards to people with deficientlegal competence------passive safeguard. The principle is isolated the society of trade and civillife through the system of declaration of incompetence, where the guardian was authorized to engage in juristic acts on behalf of the principal, furthermore, the wills of the guardian are prior to the wills of the principles. However, pursuing free and equal is the ultimate values of civil law, all disabled people, as social persons, are eager to live in a normal life and make decisions by themselves, and self-determination is the gist of free, thus the truth and value of modern adult guardianship is vacant in the adult guardianship system in China.The second, it disobliges the rules of self-determination. The adult guardianship system existing is mainly statutory guardianship, without considering the capacity of all kings of people with deficient legal competence and respecting. Heteronomy is in the place of autonomy, without respecting for a person's remaining capacity, and it is not appropriate for the judicial distinction of legal incompetence into no legal competence and partial legal competence.The third, Voluntary Guardianship is vacant. Due to people with deficient legal competence have remaining capacities, so when choosing a guardian, the voluntary guardian that the principle chooses is prior, but the active system ( including preliminary draft and protocols of civil code) is short of concern and utilization of the Voluntary Guardianship.The forth, the principles who are protected are limited. There are only two kings of people with deficient legal competence (senile dementia and mental disorders) who are qualified almsgiving, but can not render to many people with deficient legal competence, due to the aging (especially elder), psychology, lunacy, physical handicap. In China, since the elder is the most in the world and elder are gradually losing the legal competence due to the aging and urgently need all kinds of protection systems, our civil code has no reason to turn a blind eye to the social problems.The fifth, phantom of public rights. The protection of the current system for the adult people with deficient legal competence is stagnated on the simple theory of private law autonomy. The country does not take her obligations. People with deficient legal competence are unlucky of one family, but even are unlucky and natural disaster of one nation, and also are the base of one race remaining, which is the reason why modern guardianship law reinforces the public power-----jurisdiction inspects the guardianship.The fifth and sixth chapters constitute the new system. The fifth chapter, the system designed is about statutory guardianship. The sixth chapter is about the Voluntary Guardianship.New points are mainly as follows:Substitutes dated conceptions with non-discriminating terms. New system respects the rights of self-determination and protects normal life. The character of new system is that it substitutes care and assistance for protection. In the regime of civil subjective, deletes "no legal competence", adopts dichotomy on legal capacity---legal competence and partial legal competence instead of tracheotomy in the old system. On effectiveness, substitutes "efficacy undecided" with "revoke". In the part of civil subjective, in order to protect the privacy as well as security of trade, deletes the judiciary declaration of people with deficient legal competence and adopts case facts examination, and substitutes declaration of care for the declarations of no legal competence and partial legal competence; the contents of adult care system move to the family chapter; the new system of guardianship for adults consists of statutory guardianship and voluntary guardianship. When it is applied, Voluntary care is advocated and statutory guardianship is supplemented.Subjective of care and assistance in guardianship system expand to mental disorders, elder people and people with disabled ability; a guardianship commences when a person in a persistent state of being insufficiently capable of making sound judgments. Of these, a guardianship takes the form of a statutory guardianship, management, assistance, the contents of which are different and the three types can be transferred according to the capacity of dealing with affairs. The court as the public organ interferes appropriately through exertion of rights of expanding guardians and superintendence. The safeguard of procedure, from the guardian chosen to care responsibility performing, guarantees the principle to take part in the procedure and respect the self-determination.The instruments of research and fundamental methods: Taking comparative study as the core, complementing research means of sociology, law sociology, law economics, law science of mental hygiene and medical science, etc, and further examining the current system in the perspective of critical law, we presents the frame of system and general contents of the future adult guardianship, integrating with the native reality in the 21st century in China.