Interpretation Of The Adult Guardianship System In The Civil Code Under The Aging Population Context

The Civil Code of China still requires a simple declaration of lack of capacity for civil conduct as a prerequisite for establishing adult guardianship.While this rule serves to some extent in protecting the rights of adult wards and their transaction counterparts,it fails to address the societal impact of aging,and does not align with the requirements of the United Nations Convention on the Rights of Persons with Disabilities regarding the recognition of legal capacity for persons with disabilities.Currently,while it is not possible to completely separate the system of capacity for civil conduct from adult guardianship,interpreting the substantive and procedural standards for establishing adult guardianship can weaken the influence of capacity for civil conduct rules on the adult guardianship system.This can further improve the adult guardianship system’s decision-making assistance model and establish typified guardianship measures.In comparison with Japan and South Korea,although China cannot arrange typified guardianship measures formally,it can draw lessons from their typified models.Through court judgments,China can achieve the purpose of typifying guardianship measures,thereby ensuring the scope of independent legal actions for adult wards and facilitating the effective participation of adult wards in civil activities with the assistance of guardians.According to the provisions of the Civil Code,when selecting a guardian,the true wishes of the adult ward should be respected.This implies that the hierarchy of guardian selection may be disrupted by the wishes of the adult ward.Furthermore,specifying the qualifications of guardians will also have an impact on the hierarchy of guardianship.Since China only provides a brief regulation on the guardians’ guardianship capacity without clearly defining their qualifications,restricting their qualifications will inevitably lead to changes in the hierarchy of guardianship.Moreover,based on the aforementioned regulations,it can be determined that China recognizes that adults with disabilities have a certain degree of decision-making capacity.Typically,in judicial practice,the declaration of lack of capacity for civil conduct and the establishment of guardianship for adults with disabilities are often carried out simultaneously.Therefore,in situations where they have not been deprived of their corresponding capacity for civil conduct,adults with disabilities should be recognized as having the eligibility to apply for the selection of a guardian.Under the decision-making assistance model,to prevent guardians from excessively intervening in the autonomous decisions of adult wards or engaging in improper proxy activities,it is necessary to clearly define the guardian’s responsibilities for property management and personal protection.Especially regarding significant property management and medical decision-making matters concerning adult wards,decisions should generally not be made directly by the guardian.As trends of aging and declining birth rates suggest,not all guardians of adult wards are close relatives,and if guardians fail to fulfill their duties properly,it will significantly affect the vital interests of adult wards.In terms of voluntary guardianship,although both the guardian and the guardian responsibilities are determined according to the wishes of the principal,since the principal lacks capacity for civil conduct when executing the guardianship agreement,issues may arise during the execution regarding whether the guardian continues to meet the necessary qualifications and whether the agreed-upon terms are still applicable to the current circumstances.Thus,similar to legal guardianship,the qualifications of voluntary guardians should be determined,and the responsibilities that can be stipulated in the voluntary guardianship agreement should also be clarified.With regard to personal protection responsibilities,voluntary guardians should be recognized to possess general medical decision-making authority.This is based on the original intention and purpose of establishing voluntary guardianship to further utilize the adult guardianship system and maximize the respect for the true wishes of the ward.However,for significant medical decisions concerning the life of the ward,since they belong to the ward’s exclusive rights,public authority intervention is required to confirm this right,even if made in emergency situations,and confirmation should be sought from the court afterwards;otherwise,it should not be recognized.In terms of property management responsibilities,China can draw from the practices of Japan and South Korea by clearly defining the scope of property management of voluntary guardians in a enumerative manner.Currently,China’s regulations have not clearly stipulated a guardianship supervision system.Although relevant individuals and organizations are granted the right to revoke the qualification of guardians retrospectively,this is insufficient to fully protect the interests of adult wards and may lead to irreparable losses for them.Therefore,a guardianship supervision mechanism should be established beforehand and during guardianship through methods such as private rights relationships and public authority intervention to supervise the performance of guardianship duties.If guardians violate their duties during the guardianship process,they should be held liable for compensation for the losses suffered by the adult wards in accordance with tort liability rules or breach of contract liability rules.The current regulations classify the responsibility of guardians for causing harm to adult wards as substitute liability.However,according to Article 1188 of the Civil Code,guardians can mitigate their liability by fulfilling their guardianship duties,and when the ward has property,compensation should first be paid to the injured party.It is evident that the responsibility of adult guardians is not strictly substitute liability.In contrast to Japan and South Korea,China does not have a system of capacity for responsibility.Instead,the capacity for civil conduct rules replace the capacity for responsibility rules.Since the former is based on decision-making capacity and the latter is based on recognition capacity,it can be determined that the requirement for decision-making capacity for adult wards is significantly higher than that for recognition capacity.Therefore,in determining whether adult wards are liable to the injured party,it is not appropriate to apply decision-making capacity rules to judge their responsibility.Instead,their responsibility should be determined based on the degree of recognition capacity,as practiced in judicial practice.Combining Article1188 of the Civil Code,which is a general provision for the responsibility of adult and minor guardians,compared to guardians of minors,the supervision and duty of care of adult guardians towards their wards are relatively lower.Therefore,considering the different specific responsibilities of the two,it is not appropriate to determine the liability of adult guardians to the injured party based on the same standard of substitute tort liability.Moreover,in voluntary guardianship,it is difficult for guardians to achieve the level of supervision and control over their wards as parents do with their children,and some voluntary guardians may only be responsible for the financial management affairs of the ward.In such cases,determining that voluntary guardians should bear substitute compensation liability is evidently lacking legal basis.Therefore,it is more appropriate to define the responsibility of adult guardians as self-responsibility based on the breach of supervision duties.In terms of determining the parties to litigation,although the current regulations require that guardians should be listed as joint defendants,they are not automatically joint defendants.According to Article 54 of the Civil Procedure Law,victims should be given the corresponding right to choose and decide.