The Research On Guardianship System Of Minors

In October 2014,the 18 th Central Committee of the Communist Party of China passed the <Decision of the Central Committee of the Communist Party of China on Several Major Issues in Ruling the Country Governing by Law comprehensively>,which puts forth the strategic decision of "strengthening the building of a market legal system and compiling the Civil Code." In October 2017,the report of the 19 th National Congress of the CPC proposed to adhere to the principle of administering the country by law comprehensively,follow the path of the socialist rule of law with Chinese characteristics and establish a socialist legal system with Chinese characteristics.At present,the "General Provisions of Civil Law" came into force on October 1,2017,and the sub-chapters are also being worked out.The guardianship system for minors is an important system in civil law.Due to its dual legal nature of civil subject law and family law,the system of guardianship of minors should be stipulated in the General Provisions of Civil Law and the Marriage and Family Chapter.According to the general principle of civil law,"public factor extraction" of the legislative technology,the General Provisions have provided for the establishment and types of guardianship,guardian duties,the revocation and recovery of guardianship and termination of guardianship and other general system,specific Content are remained to be stipulated in Marriage and Family Chapter.Through the explanation of the general theory,historical evolution,this article examines and appraises the provisions of the relevant systems in seven countries including France,Germany,Japan,Switzerland,Russia,the United Kingdom and the United States.The system of guardianship in our country is appraised and analyzed,the existing problems are analyzed,and then the legislative suggestions on perfecting the system of guardianship for minors in our country are put forward in order to provide reference for the compilation of Marriage and Family Chapter in Civil Code by drawing on the experience of foreign legislation and the research results of our country's scholar's proposal.This article is divided into six chapters,200000 words in total.Chapter ? General Theory of Guardianship System of Minors,This chapter.Mainly on the interpretation and analysis of the basic theory in minor guardianship system,is divided into four sections: The first section of guardianship system of the basic issues.This section firstly examines the scholars' viewpoints on the concept of guardianship and puts forward thedefinition of "guardianship" in this article,and then analyzes the relationship and differences between the parental responsibility system and the non-parental guardianship system.This article proposes the concept of "grand guardianship".In terms of the nature of guardianship,this section suggests that guardianship is a duty.The second section is the legislative principle of the guardianship system for minors.This section examines the principle of the best interests of children,the principle of respect for the true wishes of children and the principle of appropriate intervention by the state public powers.In the principle of the best interests of the child,the author mainly puts forward the viewpoints that the principle of children's best interests should be investigated,including the wishes of the children,the wishes of the children's relatives,and the economic and moral conditions of guardianship candidates.In respect of the principle of respecting the true wishes of children,it mainly examines the judicial practice of courts implementing the principle of respecting the true wishes of children in the United States.For example,judges should raise a series of questions to children to find out their true intentions in court or in the living room.In the principle of appropriate intervention by the state public power,the author explains the specific content in the guardianship of minors that embodies the principle of appropriate intervention by the state public power,such as the assumption of state guardianship responsibilities.Section III The main content of the guardianship system for minors.This section examines the main contents of the minor guardianship system,including the establishment and types of minor guardianship,duties and responsibilities of guardians,supervision and termination of guardianship.Section IV Function of Guardianship System for Minors.This section proposes two main functions of guardianship system:(1)to supplement the lack of ward's civil ability to act;(2)social security functions.Chapter ? The history of guardianship system of minors in China and abroad.This chapter mainly examines the emergence and development of guardianship system of minors in foreign countries and our country in ancient times,modern times and modern period,which is divided into three sections: Section I: The Historical Evolution of Foreign System of Guardianship of Minors.In ancient times,We mainly inspect the guardianship and Baozuo system in the Roman law.In this period of modern times,the guardianship system of minors in France and England was selected for inspection.In the modern period,the guardianship system for minors in Germany and the United States was selected for inspection.Section II History of Minor Guardianship in China.In ancient times,the author focused on thepatriarchal clans,family relations and characteristics of guardianship system of minors in ancient China.In this period of modern times,the author mainly studied the system of guardianship of minors in the draft law of the Qing Dynasty in 1911 and the Civil Law of the Republic of China in 1930.In the modern period,it explained that the system of guardianship of minors from the founding of People's Republic of China to the period of reform and opening up was neglected,and it was re-approved in the General Principles of Civil Law in1986.Section III Changing Trend of Chinese and Foreign Minors Guardianship System.By examining the historical evolution of the guardianship system for minors in foreign countries and China,this section summarizes the changes in the concept of guardianship legislation,changes in the nature of guardianship,changes in guardian's gender and changes of public power intervention.Chapter ? Investigation and Comparative Analysis of foreign Parental Responsibility System and Minors Guardianship System.This chapter examines and compares the parental responsibility system in France,Germany,Japan,Switzerland,Russia and the minors guardianship system in France,Germany,Japan,Switzerland,Russia,the United Kingdom and the United States.It is divided into five sections: Section I: Investigation and Comparative Analysis of the System of foreign Parental Responsibility and Minors Guardianship.With regard to the external system of parental responsibility,in addition to the French legislation,the parental responsibility system in four countries of Germany,Japan,Switzerland and Russia is stipulated in marriage and family chapter;With regard to the external legal system of the guardianship for minors,In most countries,the guardianship system for minors is stipulated in the relatives chapter or the marriage and family chapter.With regard to the internal legal system of the guardianship for minors,In the United Kingdom and United States,the minors guardianship system includes the parental guardianship of minor,while the guardianship system for minors in other countries does not include this part.Section II Investigation and Comparative Analysis of the Establishment and Types of foreign Parental Responsibility and Minors' Guardianship.This section mainly examines and compares the reason for the establishment of the parent right and the qualification of the parent and the reasons and types of guardianship of minors abroad,the guardian's right of refusal,qualifications for guardian.Section III Investigation and Comparative Analysis of Duty and Responsibility of Foreign Parents and Minors Guardians.Regarding parents' and guardian's duties,this section examines and comments on the duties ofpersonal guardianship and property guardianship respectively.With regard to guardian's responsibility,what the French law,the German law,Russian law have in common is that they require the guardian assumes the responsibility on the premise of his fault.Section IV Investigation and Comparative Analysis of Foreign Parental Responsibility and Minors Guardianship Supervision System.This section first examines the foreign parental supervision system,the parental responsibility restrictions should be in line with the "principle of proportionality",followed by inspection of the French,German,Japanese guardianship supervisor system and the system of supervisory bodies and lawsuit representatives in some countries.Section V Investigation and Comparative Analysis of Foreign Parental Responsibility and Minors Guardianship Termination System.This section firstly investigates and compares the causes and consequences of the termination of parental right,and then divides the cause of termination of guardianship into the reason of absolute termination and the reason of relative termination,and then focuses on the system of resignation of guardians and the revocation of guardianship qualification system.Finally,it summarizes the foreign consequences of termination of guardianship.Chapter ? Investigation and Evaluation of China's Minors Guardianship System.This chapter examines the system of guardianship of minors in our country,analyzes the breakthrough of the relevant provisions of the General Provisions of Civil Law and the deficiencies in the system of guardianship of minors in our country.Section I Investigation of minors Guardianship System in China.This section examines the system of guardianship of minors in our country,including the establishment and type of guardianship,the duties and responsibilities of guardians,the supervision of guardianship and the termination of guardianship.Section II Review of the Guardianship System of Minors in China.This section mainly reviews the system of guardianship system for minors in China,the establishment and type of guardianship,the duties and responsibilities of guardians,the supervision of guardians and the termination of guardianship.In terms of the internal system,the General Provisions of Civil Law used the concept of "grand guardianship" but properly separated parental Guardianship from non-parental Guardianship in line with the ethical assumption of "trust" and "mistrust",which is worthy of recognition.With regard to the establishment and types of guardianship,the breakthrough stipulated in the General Provisions of Civil Law consists in adding a will guardianship system and a more flexible appointed guardianship system.The appointed guardian adopts the principle of "the principle of being the most beneficial to theward and the principle of respecting the true wishes of the ward" as guidance,add the temporary guardianship system to legislation,delete stipulations about minors' parent unit as the guardian,and then pointed out the existing problems in the establishment of the will guardianship and entrustment guardianship.In terms of guardian duties,the breakthrough stipulated in the General Provisions of Civil Law is that it is clearly stipulated that "the principle of the most beneficial to the ward" and "the principle of respecting the true wishes of the ward" should be followed in performing guardian duties.The shortcomings are that some necessary guardianship responsibilities aren't defined,including medical decision-making right,the right to appoint the domicile of minors,the duties to make lists of property and accounts needed to be reviewed by the court or administrative supervisory authority,the remuneration claims and the right to compensation.It is not stipulated that guardian's special guardianship affairs need the consent of the court or related agencies.In the aspect of guardianship supervision,the shortcomings are: the system of supervisor for guardianship is not perfect;the system of special families to be visited by relevant agencies is not perfect;and the system of lawsuit representatives is absent.With regard to the termination of guardianship,the breakthrough stipulated in the General Provisions of Civil Law consists in that the revocation and reinstatement of guardianship system in the judicial interpretation is uplifted into law with improved specific provisions.The deficiency lies in the fact that the reasons for terminating the guardianship are not divided into the absolute termination and relative termination.Some reasons for the termination of guardianship are not provided such as guardian resignation,system of revocation and restoration of guardianship is not perfect,the provisions on the termination of guardianship are relatively simple.Chapter ? Investigation and Comparative Analysis of Scholar's Suggestions on the Parental Responsibility System and Minors Guardianship System in Our Country.This chapter examines and compares the main points of Liang Hui-xing's scholar's suggestion draft,Xu Guodong's scholar's suggestion draft and Wang Liming's scholar's suggestion draft on Parental Responsibility System and minors' guardianship system,which is divided into five sections: Section I Investigation and Comparative Analysis of Scholar's Suggestion Drafts for the System of Parental Responsibility and Minors Guardianship,As for the system of the parental right external system,three scholar's suggestion drafts all stipulated the parental right system in the "Marriage Family Series" or "relatives series" of the suggestion draft;As for the system of guardianship system for minors,it first examines the external system of minorsguardianship.The three scholar's proposals are similar in that all adopt the "centralized" legislative system,and then the internal system of minors guardianship system was examined.The minor guardianship proposed by scholars such as Liang Huixing and Wang Liming and other scholars suggested that the guardianship of minors should include guardianship of parents and guardianship of non-parents.While Xu Guodong's scholar's suggestion draft's minor guardianship only include non-parental guardianship.Section II.Investigation and Comparative Analysis of Scholar's Suggestion Drafts for the Establishment and Types of Parental Responsibility and Minors' Guardianship.This section firstly exames the reasons for the establishment of the parental responsibility in three scholars suggestion draft,Xu Guodong's scholar's suggestion draft suggests that parents have not yet married,the mother exercises parental right alone,the other two scholar suggestion drafts did not distinguish between the father's parental right and the mother's parental right;followed by the main study of three scholars suggestion drafts mainly examines the reasons for the establishment of minor's Guardianship,the type of guardianship,the guardian's capacity and qualification for guardianship in the three scholar's proposals.Section III Investigation and Comparative Analysis of Scholar's Suggestion Drafts for the Parental and Guardian's Duties and Responsibilities,In this section,Duties is divided into personal guardianship duties and property guardianship duties for being investigated and evaluated.Regarding the parents and guardian's responsibility,the commonalities of the three scholars' proposed drafts are that all stipulate that the guardian shall make compensation for the property damage to the ward.The main difference is that scholars such as Liang Huixing suggested that the nature of liability should be tort liability,while the other two proposals did not specify the nature of liability.Section IV Investigation and Comparative Analysis of Scholar's Suggestion Drafts for the Supervision System of Parental Right and Minors' Guardianship,This section firstly examines the parental supervision system.Xu Guodong scholar's suggestion draft stipulates that if one parent damages the property interests of the children,the interested party or the child welfare organ should order the parents to correct their acts,If necessarily,ask the parents to provide guarantee.this section mainly inspects and compares the guardianship supervisor system.For custodial supervision agencies,only Xu Guodong scholar's suggestion draft proposed a supervision body-relatives meeting.Section V: Investigation and Comparative Analysis of Scholar's Suggestion Drafts for Termination System of Parental Right and Minors' Guardianship,This section first examines and analyzes the causes and consequences of thetermination of parental responsibility in three scholar's suggestion drafts,examines the reasons for the termination of guardianship,and divides the cause of termination of guardianship into two reasons which are absolute termination and relative termination.And then examine the guardian's resignation system and the revocation of guardianship Qualification system,it mainly investigated and compared the situations that led to the guardianship being revoked and the subject who apply for withdrawing guardianship.Finally,the consequences of guardianship termination were investigated and compared.Chapter ? Suggestions on Perfecting the Guardianship System of Minors in China.In the light of the insufficiency of the guardianship system for minors in our country,this chapter draws on the experiences of foreign relevant legislation and the scholar's suggestions,and puts forward the suggestions on the guardianship system of minors in our country.Section I Suggestions on Perfecting the System of Minors Guardianship in China.Regarding the external system of guardianship for minors,it is suggested that a "total-point" legislative model should be adopted;stipulate the provisions of the guardianship system of minors in marriage and family chapter of Civil Code and improve the content to be further refined in General Provisions of Civil Law.The concept of "grand Guardianship" should be still used in the marriage and family chapter of Civil Code,but the guardianship of parents and that of non-parents should be appropriately differentiated in the guardian's rights and obligations,guardianship supervision and so on.Section II Suggestions on Establishment and Types of Minors Guardianship in China.With regard to the establishment of will guardianship,it is to be clearly stated that the application of will guardianship takes precedence over the legal guardianship;when both parents appointed guardians and the appointed guardians are inconsistent,the designation of the later-deceased parents shall be priority.With regard to the establishment of the entrustment guardianship,it is suggested that the establishment of the entrustment guardianship be limited to cases where the guardian is temporarily unable to perform guardianship duties such as going out for work,serving a sentence,or illness no matter it is for parental or non-parental guardianship.With regard to the guardian's qualification for guardianship,an inspection of his moral character should be added when confirming the guardian,and the positive qualifications and negative qualifications for confirming guardian should be stipulated.With regard to the guardian's right of refusal,it is suggested that for parental guardians,temporary guardians and institutional guardians,they do not enjoy the right of refusal;in statutory guardianship,will guardianship and designatedguardianship,close relatives guardians should enjoy the conditional right of refusal and the guardians of non-relatives should have the unconditional right of refusal.Section III Suggestions on Improving the Duties of Minors in Our Country.In terms of personal guardianship duties,it is suggested to add the guardian's medical decision-making right,the right to appoint the domicile of minors;in respect of property guardianship duties,it is suggested to add the guardian's remuneration claim,the right for compensation and the duties to make lists of property and accounts needed to be reviewed by some agencies;the establishment of relevant agencies to review the non-parental guardian engaged in special guardianship affairs.Section IV Suggestions on Improving the Supervision System of Minors Guardianship in China.This section mainly proposes to perfect the system of minors' guardianship supervisors;to improve the system for visiting special families by relevant agencies;to create a system of lawsuit representatives.Section V Suggestions on the Improvement of Termination of Guardianship of Minors in China.For the reason of the termination of minors' guardianship,the reason of termination of minors' guardianship shall be divided into the reasons for the absolute termination and the reasons for the relative termination,and one type of circumstance leading to the relative termination of the guardianship shall be added: the guardian resigns.the revocation and restoration of guardianship and the consequences of termination of minors' guardianship system should be perfected.