A Study On Some Aspects Of Guardianship Institution

Among the institutions in civil law, guardian is an important one. Its purpose is to protect the interests of under guardian by the proper design of this institution. To compare this institution in China with those in civil law countries, this article provides some views to perfect it. The article thinks that two new kinds should be added to the legislation, they are testamentary guardian and the guardian set up by oneself, and the legislation should include some relevant regulations of qualification, resign and compensation. The establishment of guardian of social organizations and special distractive body should be improved, and the liability of guardian especially that with property, should be prescribed in detail. Supervisor of guardianship should be added, too. There are three types of legal liability in guardianship, among it the liability of guardian is the most important one. The liability of guardian is a kind of liability without fault while the under guardian infringes the interests of others, the person responsible to it is in the position of defendant in litigation. In the end, the article evaluates guardian institution in the draft of China Civil Code, finding that there are as many shortcomings in it as in General Principles of the Civil Law. The legislation should be improved by the mature experience from civil law countries.