Study Of The Illegitimacy Of The Transaction Of Guardian

From the viewpoint of the transaction of guardian, the author studies Chinese parental right and custody system, by means of the analysis of case and comparison between Chinese laws and other countries' laws. The author favors the improvement of system and the creation of a Parental Right and Tutelage Law.The dissertation is classified into six sections .The first section studies the custody and the responsibility of the guardian. This section is the starting point of theory in the dissertation. The first section sorts out some basic concepts about parental right and custody. Section one especially studies the relationship between parental right and custody, the duty of custody and their substance. It is emphasized that minors' interests is most important in the parental right and system of custody.The second section studies the guardian's transaction. First, the second section studies the concept of the guardian's transaction. Then, reveals the features, origins and forms of expression, of the guardian's transaction. Finally, Section Two points out that it's the guardian' transaction by which guardians carry on the transactions by infringing up on the wards'right, and damaging the interests of the ward . The first two sections include the basic theory of the dissertation.For example, taking the case of raping the girls continousely, the third, forth and fifth sections analyze the procedural illegitimacy, civil illegitimacy and criminal illegitimacy of the guardian's transaction. The procedural illegitimacy is shown in twoaspects: one is the handling of civil procedural rights, the other is the abandoning of private criminal prosecution.As for the civil illegitimacy, first of all, the defects of the system of mental and emotional damage is analyzed. Afterwards, the infringement with which the guardian illegally handled the guardianship is analyzed. Because perusing someone with a lawsuit for the minor is the legal responsibility of the guardian. The guardian's transaction made Li Mou lose economic interests of over ï¿¥3000, and also made her sustain a damaged personality, a lack of receiving beneficial custody and education.For criminal illegitimacy, the author analyzes the application of different sorts of law in one case, and the criminal problems of the transaction of the guardian. As to the second problem, the author demonstrates that Li's father meets the requirements of the subject of "the crime which advocators,exterminates or falsifies proof, Because of the principle of the privilege of capacity, Private authority should be superior when public authority is contradictory to it, and it is not necessary for is Li's father to appear in court to give evidence for the indictment. Li's father ought to serve as legal advocate when his witness's capacity in the indictment was contradictory to his legal representative's capacity in the attached civil case.The analyzing of many cases, shows the problems of the Chinese custody system, and contains the answerers to those questions at the same time.The Sixth section studies the legal regulation of the guardian' transaction. First, the author tries to resolve the cases of the guardian's transaction according to the way that the guardians ascertained procedural responsibility, civil responsibility and criminal responsibility. Especially, if the guardian's transactions infringe upon the minor' civil rights only, the litigation time efficiency should be prolonged, or custody superintendents should bring a suit against the guardians. When the guardian's transaction constitutes a crime at the same time, the guardianship should be canceled because of criminal responsibility, and a mew guardian should be assigned for the wards .The new guardians should bring a lawsuit for the wards to require the former guardians to assume the results for the breach of contract ,paying the wards for their emotional,mental and property damages. In order to guard against the guardian'stransaction, a parental Right and Custody Law should be made. There are three reasons. First, the wards nee...