A Research On The Old-aged Guardianship System From The Perspective Of Autonomy Of Private Law

It cannot be denied that the notion of autonomy of private law plays a fundamental rolein modern civil law. As modern civil law develops, there emerges a trend towards a dynamicbalance between autonomy of private law and state intervention by adding the concept of stateintervention including legal paternalism to the long-established notion of autonomy of privatelaw while emphasizing autonomy of private law and centering on inviolability of privaterights. In the context of serious aging of population and rising call for human rights, theold-aged guardianship system in China cannot meet needs of realities. Both its legislativeideas and contents require changing on a large scale. Taking autonomy of private law as themain research perspective and theoretical basis and learning from advanced legislativeexperience of other countries, the author makes an in-depth probe into the old-agedguardianship system and puts forward suggestions.The paper falls into six chapters with21,4331words besides the introduction.Chapter One: The Summaize of Old-Aged Guardianship System. This chapter focuses onsome basic aspects of the old-aged guardianship system including its concept, attributes andfunctions. Part One: the attributes of the old-aged guardianship system. Because the custodyof the elderly is the subject matter of the research, the first part mainly makes a research onthe attribute of the old-aged guardianship system. This part firstly discusses the argument inChinese jurisprudential circle that whether guardianship is a right or a obligation. From theperspective of ascription of interests the author tends to think that the old-aged guardianship isa kind of obligation. Part Two: the boundary of the old-aged guardianship system. Comparingthe old-aged guardianship system with other relevant systems aboutseniors’ life including theadult guardianship, agency, maintenance, will and property planning, the author hold the viewthat although it more easily intrudes upon private space the old-aged guardianship system isindispensable in other aspects.Part Three: the concept and the sort of old-aged guardianshipsystem.In essence, the old-aged guardianship system is an important part of guardianshipsystem. The part firstly discusses the characters of the old-aged guardianship systemaccording to the adult guardianship. Then, considering that the old-aged guardianship systemis part of adult guardianship system, the author expounds on the concept, attributes andclassification of the old-aged guardianship system on the basis of adult guardianship system. Part Four: the functional orientation of the old-aged guardianship. As an important part of theguardianship system, the old-aged guardianship system has several self-evident functionsincluding to serve for the aged as an family security, to offset the deficiency in capacity forcivil conduct of people under guardianship to protect the interests of vulnerable seniorcitizens and to safeguarding the transaction security.Chapter Two: the Historical Development of the Old-Aged Guardianship System andComments. After introducing the basic theory, taking several typical western countries asexamples, Chapter Two depicts the historical development of the old-aged guardianshipsystems in these countries, summarizes the developing trend and analyses causes. Part One:the historical development of the old-aged guardianship system. This part firstly talks aboutfamily essence and paternal power in Roman law, and then explains the view that thedevelopment of the old-aged guardianship system in Roman law shifts from "family-centered"to "individual-centered", that is from the whole responsibility of parents for guardianshipinitially, to the gradual intervention of the state into patria potestas by means of law, to theemphasis on the protection of individual rights in the process of state intervention. Then froma macro angle, this part reviews the modern and contemporary development of the old-agedguardianship systems in several western countries. For this purpose, in light of thedevelopment level of economy and legal system, the author takes Ontario of Canada, U.S,Germany, France, Japan and Israel as examples, and systematically discusses the historicaldevelopment of the old-aged guardianship systems in aforesaid countries. Part Two:comments on the historical development of the old-aged guardianship system. Based on thedescription of the historical development in the prior part, the author finds the developingtrend towards the state obligation and social responsibility with autonomy of private law asthe center. By analysing the emergence and development of guardianship by agreement, theabolition of interdiction, the reasonable application of due process and the return of ageneutralism in legislation, we can see the legislative trend in the old-aged guardianship systemwhich centers on the notion of autonomy of private law, distinguishes people’s needs, respectstheir desires, protect their rights and equal status. When it comes to the state intervention inthe old-aged guardianship system, the fulfillment of responsibilities of the state to grant andprotect individual rights to live freely and equally should be emphasized in the course ofcontrolling the degree to which public power should intervene the guardianship system andthe construction of public guardianship system. Then the author analyzes causes behind the development tendency of the old-aged guardianship system from three angles, namely, theaging of population, the advent of post demographic transition period and the rising call forprotecting human rights of vulnerable groups.Chapter Three: the Rationale of the Old-Aged Guardianship System—a DialecticalNotion of Autonomy of Private Law. In the second chapter, the author concludes from thehistorical development that the development tendency of the old-aged guardianship system isthe state obligation and social responsibility centering on the autonomy of private law, whichis also an important reference when the author treats the dialectical notion of autonomy ofprivate law as the rationale. Part One: the dialectical notion of autonomy of privatelaw—individual autonomy and state intervention. From the two perspectives of individualautonomy and state intervention, this part discusses the dialectical notion of autonomy ofprivate law, which ranks individual autonomy as top priority and advocates the state properlyintervene in individual autonomy with the least legal paternalism. Part Two: the old-agedguardianship system and the dialectical notion of autonomy of private law—taking thevenerable elderly group as the point of analysis. By taking the venerable elderly group as thepoint of analysis, this part explains why the author treats the dialectical notion of autonomy ofprivate law as the basic theory of the old-aged guardianship system, that is why the state mustprotect the vulnerable elderly group in the principle of preferential protection, pay attention tothe protection of human rights of vulnerable groups and why the protection of human rights ofvulnerable senior citizens requires the respect for their rights of self-determination. Part Three:the necessary choice of the old-aged guardianship system—the state intervention centering onindividual autonomy. This part discusses how to incorporate the dialectical notion ofautonomy of private law into the old-aged guardianship system. The author believes that theold-aged guardianship system should be established in the principle of the least legalpaternalism. The old-aged guardianship by agreement should be completely individuallyautonomous and the statutory old-aged guardianship should also follow individual wishes tothe greatest degree.Chapter Four: the Examination of Foreign Legislation of the Old-Aged GuardianshipSystem—Comparison Between Current Systems and Comments on Them. In a series oflegislative principles including respecting the right of self-determination, major countriesreconstruct the old-aged guardianship system by either enacting new laws or amending laws.Due to differences in history, religion, cultural tradition and other aspects, the old-aged guardianship systems of different law families and countries are obviously different in thelegislation mode and particular rules. The author divides the old-aged guardianship systeminto old-aged guardianship by agreement and statutory old-aged guardianship. Taking U.S,Britain, Canada, all of which belong to the common law system, and Japan, Germany andFrance, all of which belongs to the Roman law system, as examples, the author examines theirparticular rules and makes comments on their similarities and differences. Part One: theexamination of and comments on foreign legislation of the old-aged guardianship system. Bycomparing the modes of sustainable agency, arbitrary guardianship and improved statutoryguardianship, it is concluded that the mode of arbitrary guardianship in Japan combinesindividual autonomy and state intervention in a proper way, which is worth learning from.Part Two: the statutory old-aged guardianship. By comparing the modes of uniform, two-leveland three-level old-aged guardianship systems, the conclusion is reached that the mode ofthree-level guardianship doesn’t only protect autonomy of will of people under guardianship,but also define the scope of judges’ discretion, which is also worth learning from. Admittedly,no matter these countries adopt which kind of legislative mode of the old-aged guardianshipby agreement or statutory old-aged guardianship, they have valuable contents for our learning.Chapter Five: the Status Quo of the Old-Aged Guardianship System in China. Part One:the current legislation of the old-aged guardianship system. This part lists standards ofestablishment of the old-aged guardianship system and qualifications and responsibilities ofguardians for the elderly in China’s legislation for the old-aged guardianship system whichmainly consists of General Provisions of the Civil Law of People’s republic of China, andSupreme People’s court’s opinions about the implementation of the aforesaid generalprovisions and relevant laws and regulations concerning the elderly. Part Two: the lagging andlimitations of current legislation for the old-aged guardianship system. This part mainlydiscusses the existing old-aged guardianship system in China, including its obsoletelegislative ideas, unscientific legislative style, the absence of adult guardianship by agreementand defects in statutory old-aged guardianship system. Part Three: the necessity of improvingthe old-aged guardianship system in China. This part explains the necessity of improving theold-aged guardianship system in China from three perspectives, namely populationbackground, foundation of thinking and the requirements of the reality. The author points thatit is really urgent to improve the old-aged guardianship system in the present China where thepost demographic transition comes, there is an increasingly necessary need for family support of the elderly and a rising cry for protecting senior citizens’ rights of self-determination. PartFour: the feasibility of improving the old-aged guardianship system in China. On thetheoretical basis—the implementation of autonomy of private law in the field of law ofdomestic relation, the social basis—the call for improvement of the elder’s situation and thelegislative basis—the appearance of guardianship by agreement in China, this part expoundson the feasibility of improving the old-aged guardianship system in China.Chapter Six: the Legislative Conception for the Improvement of the Old-AgedGuardianship System in China. After finding defects in the existing system and necessity andfeasibility of improvement analyzed in Chapter Five, absorbing experience summarized bycomparing old-aged guardianship systems in other countries in Chapter Four and taking thedialectical notion of autonomy of private law as the rationale, the author choose the fourlegislative proposals about the adult guardianship and gives the analysis.Then puts forwardthe legislative conception of the old-aged guardianship system that in principles of "respectfor self-determination" and "limited guardianship" the legislature should reconstruct thelegislative style of the old-aged guardianship system and create the old-aged guardianshipsystem by agreement. Besides, the author also suggests the notion of autonomy of private lawshould be embodied in following aspects: application standards and types of the old-agedguardianship system, qualifications and duties of statutory guardians of the elderly and thesupervision of statutory old-aged guardianship with a view to improving the statutoryold-aged guardianship.