A Comparative Study Of The Adult Guardianship Systems Of China And Japan

Several laws were passed on December 1, 1999, by the Japanese Diet on amending the adult guardianship system. As both the most extensive amendment since the Civil Code of Japan has keen enacted and a large－scale revolution of legal system to meet the coming old-age-society, not only the interdiction and constructive interdiction system in the General Provisions and guardianship of the minors system in the Family Law Volume have been amended, but also the "voluntary guardianship system" and "guardianship registration system" have been established. According to the statistics, the Chinese population will reach 1,301 million by 2003, among which 140 million are aged persons. China is facing the increasingly serious social problem of old-age-society, as Japan is. In order to solve the problem of protecting the aged's personal and property rights in such a society , the existing guardianship system in China needs amending urgently.By comparative analysis and social studying, in accordance with the facts and statistics, from the angle of protecting human rights, based on an introduction and evaluation of Japanese adult guardianship system, this thesis compares Chinese adult guardianship with that of Japan in order to research on the advantages and disadvantages of Chinese law in effect. In the end the writer tries to design for a specific legal system of adult guardianship. The whole thesis is composed of three parts: Part I Jurisprudential Analysis and General Comparison of Chinese and Japanese Adult Guardianship Systems In general , the two countries' adult guardianship systems share both identities and differences, but differences weight more that identities. First of all, they are in different historical formations. The formation of Chinese existing system is the combination of "familism" and "individualism", emphasizing "family rule", while that of Japanese is "nationalism, " emphasizing the intervention of public power. Secondly, they have different legal theories. Japanese adult guardianship system centers on "respect of one's own decision", "normalization" and "emphasizing personal respect ", while Chinese adult guardianship system centers on "family care" and "superintendence and management". Thirdly, their systems' frameworks are different. Japanese adult guardianship system is composed of legal guardianship system, voluntary guardianship system, guardianship registration system and guardianship superintendence system, while in Chinese adult guardianship system, which is a centralized guardianship system, there is no law concept even. In order to develop Chinese adult guardianship system at a stride, it is needed to establish "nationalism" pattern and alter the existing guardianship system to set up a framework with an integrated system.PartⅡ A Comparative Study of Chinese and Japanese Adult Guardianship SystemsIn this part, there are altogether four sections. In Section One, the Chinese adult guardianship system is introduced according to classification of systems in the logical order of subjects, objects and contents in guardianship. The deficiency of existing system is pointed out. In Section Two, Japanese adult guardianship system is divided into three levels — ssistance, protection and guardianship of minors according to the adult wards' judgment. Centering on assistance system, this section introduces assistant, assistee, the occurrence , alteration and extinction procedures of assistance, power of agency, power of consent and power of dissolution related with assistance. Section Three compares Chinese law, which is excessive and simple, with Japanese law, which is rigorous and detailed. Of the fundamental concepts, the concepts and natures of guardianship systems in two countries are different; of means of classification, in Japanese law it is classified into three types, assistance, protection and guardianship of minors according to the wards' judgment, while in Chinese law it is classified into two types, "legal guardianship" and "designated guar...