| Since the end of the Second World War in the 20 th century,the United Nations Charter was born in 1945,and the Universal Declaration of Human Rights was promulgated in 1948,promoting the development of human rights protection,and also the innovation of modern adult guardianship.In the 21 st century,in order to realize the latest modern adult guardianship concept,such as "respect for oneself to self-determination","attaches great importance to the people to take care of","ability to use the rest of the" and "public appropriate intervention force",many countries successively implemented reform for domestic adult voluntary guardianship system.In 2014,in the fourth Plenary Session of the 18 th CPC Central Committee,the Communist Party of China emphasized that the rule of law with Chinese characteristics is a concentrated expression of the achievements and experiences of the socialist rule of law and the only correct way to build a socialist country under the rule of law.The nineteen major parties of the party adhere to the establishment of a comprehensive rule of law as an important part of the thought and basic strategy of socialism with Chinese characteristics in the new era.The general principles of civil law in China have been implemented,and the adult guardianship system has been amended and supplemented.However,in order to further realize the legislative idea of the modern adult guardianship system,our country still needs to continue to supplement and improve this system in the judicial interpretation of the general principles of civil law and compiling the civil code marriage and family arrangement.Based on the background of the modern adult guardianship system and the latest legislative ideas,this paper analyzes the success and shortcomings of the current adult guardianship system in China,and draws lessons from other countries' useful experiences and suggestions from Chinese scholars.Finally,I will put forward proposals for the improvement of our adult guardianship system.Besides the introduction,this paper includes five chapters,about 190000 words.Chapter 1 is the Basic Theory of Adult Guardianship System.The basic theories involved in this subject,such as the nature,and the relative definition of the adult guardianship system are presented in this chapter.The first section is the discussion of the nature of the adult guardianship.This section focuses on the analysis and research of the essential attribute of the system.In the current domestic academic circles,the theories of theproperties of the guardianship can be divided into three kinds: the Theory of Rights,the Theory of Obligations and the Theory of Rights and Obligations.After analysis,the author thinks that the properties of adult guardianship is the unity of rights and obligations,but tend to think it with more attribute of obligations.The second section is defining the connotation of adult guardianship and related concepts,including minor guardianship,agent,supporting parents,supporting children,care and protection.The author thinks that comparing with the above-mentioned systems,there are obvious boundaries between the adult guardianship system and them,which reflects the irreplaceability of adult guardianship system.The third section is the legislation system and the main content of adult guardianship system,mainly including the external and internal system for the legislation part;and including the subject,the essential factors of setting up,the rights and obligations of relevant subjects,coming into effect,changes,the public intervention and supervision.The fourth section is the functional orientation of the adult guardianship system.Guardianship system,as one of the important civil law system,has irreplaceable functions,while the adult guardianship system as an important part of guardianship system,also has important and special functions.It can protect the weak benefit,make up behavior capacity of person under guardianship,protect the interests of the third person,and maintain the transaction security.Chapter 2 is the research on the new change of the modern adult guardianship system,making summary of the latest legislation in modern adult guardianship system and its development trend,on the basis of reform background and the theory of human rights development.The first section is the reform background of modern adult guardianship system,expounding the defects of the traditional adult guardianship system and the guidance of the United Nations human rights protection literature on the reform of the adult guardianship system.In the second section,the new idea of modern adult guardianship system reform is analyzed.This section mainly elaborated the new idea of modern adult guardianship system reform under the background,including respect for oneself self-determination,maintaining the normalization of life by making flexible use of the remaining capacity of the parties,attaching great importance to taking care of parties themselves and appropriate public intervention.The third section is the new content of adult guardianship system reform.The author selects France,Germany,Russia,Japan,South Korea and Switzerland for typical investigation and evaluation,mainly for the following reasons: firstly,the six countries are typical ones of modern adult guardianship system reform,with certain characteristics of theirsystem;Secondly,the south Korean adult guardianship system can't be found in the current relevant translation text in our country,with certain novelty;Thirdly,Switzerland changed its adult guardianship system in 2013,and also no scholars carried on the specialized investigation and evaluation on it till now;Fourthly,as an important reference for our country the legislation object,Russian system is worthy of further research;Fifthly,France,Germany and Japan are study choices of numerous adult guardianship scholars,and many theories of their countries can be shared for our country,and their unique characteristics are suitable for comparing with other countries.The fourth section is the necessity of perfecting the adult guardianship system of our country,saying that our country should react positively,facing the worldwide reform of adult guardianship system mentioned above,and this section discusses the necessity of perfecting adult guardianship system of our country,from the aspects of the population background and realistic demand ect.Chapter 3 is the thinking and improvement of the legislation style of adult guardianship system of our country.The first section is the present situation and rethink of the system in our country legislation system.This part focuses on the introduction and evaluation of legislation system before and after the implementation of the General Rules of Civil Law of our country.The second section is the investigation and evaluation of the modern adult guardianship system legislation system of extraterritorial countries.Concluding that the changes in the name of the adult guardianship system,from the original monitoring system to the word of care and protect,are mainly to highlight the changes of concept of modern adult guardianship system.Adult guardianship system is mostly stipulated in the Family of Civil Code,proved to have its rationality.On the legal guardianship and voluntary guardianship system,in order to highlight the respect to the self-determination of parties,the voluntary one is preferred,and it should be with detailed rules so as to increase maneuverability.The third section is the investigation and evaluation of legislation system and system name,based on the point of view from Chinese adult guardianship system scholars.The fourth section is the perfection of adult guardianship system legislation system of our country.According to the above analysis of extraterritorial legislation and Chinese scholars' thinking,in combination with the practical legislation situation of our country,suggestions about legislative styles of adult guardianship system are proposed,which is that the provisions of sense of principle should be listed in the General Rule of Civil Law while the concrete contents be stipulated in the Marriage and Family.For the name of guardianship,the author thinks that it should stickto the current name of our country's existing guardianship system.Chapter 4 is thinking and supplement of our country's adult voluntary guardianship system.This chapter mainly discusses the adult voluntary guardianship system.The first section is the current situation and analysis of adult guardianship system of our country.First of all,it introduces the legislative status quo and judicial practice of our country before and after the General Rule of the Civil Law.The author selected the related typical cases of adult guardianship in our country,to reflect the experience and confusion existing in the current judicial practice of our country,concluding the experience and deficiency of our country's legislation and administration of justice.The second section is the investigation and evaluation to modern extraterritorial countries' adult voluntary guardianship system.Through the investigation of inner style and the main content such as the essential factors of setting up,the rights and obligations of relevant subjects,coming into effect,changes,the public intervention and supervision,the author derived that the reference we can use from the provisions of the Swiss are general measures and health measures;while In the main content,the following should be absorbed: increasing notary for essential factors of establishment,clarifying the rights and obligations of legal guardians and public intervention and so on.The third section is the investigation and evaluation based on the point of view of our country adult voluntary guardianship system scholars,mainly analyzing the main content of the scholars point of view.the fourth part is the suggestions to perfect our adult voluntary guardianship system,mainly on the general rules of adult guardianship and the content of the voluntary guardianship.General rules specify that the guardians enjoy the right of resignation and rejection,list the conditions that guardians enjoy the right of remuneration,clear the right of reimbursement that the guardian have on expenses,and add the effectiveness after the termination.Internal style of Voluntary guardianship system is divided into general measures and health measures,and respectively added content on two of them.Chapter 5 is the thinking and supplement of adult legal guardianship system.The first section is the situation and evaluation of adult legal guardianship system in our country.Through the investigation on the present legislation situation and judicial cases of the adult legal guardianship system,the author conclude what have been improved at present for our country's legal supervision,including expanding and reasonably selecting the scope of persons under guardianship,a clear responsibility that adult children has for the care of old people,optimizing the procedure of the guardian determination,increasing the MiscellaneousProvisions of the national monitoring.And what should be improved for adult legal guardianship system,including the lack of diversified measures of internal style,lack of qualification(monitoring)of Guardian,lack of procedures for guardianship beginning in the elements of establishment,the rights and obligations between guardian and ward not clear,the recovery of guardianship to be perfected,the public intervention and guardianship supervision to be strengthened.The second section is the investigation and evaluation of the current adult legal guardianship system of extraterritorial countries.Through the comparison on the internal style and main content of adult legal guardianship system of different countries,the author concluded that typology regulation is worthy of being absorbed and drawn by our country,including the specific legislation content.The third section is the investigation and evaluation of the point of view from Chinese adults legal guardianship system scholars.This section mainly studies the main academic point of view and recommendations of scholars in our country at present,by comparing the internal style and the specific content of them on adult legal guardianship system,the author get what can be introduced into the final legislative suggestions in this paper.The fourth section is the supplementary suggestions of adult legal guardianship system in China.The author suggests that in the inner style,the typology of legal guardianship should be adopted,which is divided into two measures of custody and auxiliary,and then the adding contents of the two respective measures are put forward by author. |
PDF Full Text Request