A Research On The Guardianship Of The Minors' Family

In the current world, the survival, development and protection of the minors which has become a world wide theme commonly concerned by the international community displays a trend of internationalization and globalization. In China, though the communist party and government attach great importance to the survival, development and protection of hundreds of millions of the minors, the situation of protection of the minors remains grim. The minors' guardianship system is very crude and shabby, lagging behind the international protection requirements and process, and can not satisfy the minors' desire and hope. Only putting the minors without paternity protection under the protection of guardianship system with scientific setting, solid content, scrupulous regime and complete system and only giving standardized and systematic constraints can the minors gain stable and continual security. In order to achieve effective protection of the minors, legislators set up the guardianship system.Guardianship system originated from Roman Law. As early as 450 BC, the first written code Law of the Twelve Tables which can be verified in writing made special stipulation on guardianship. The so-called guardianship refers to the legal system that supervising and protecting the personal interests and property interests of a specific natural person according to law. In guardianship, the person who takes up the responsibility of guardianship is the guardian while the person who is under guardianship is called the ward. According to the range of guardianship, the guardianship can has interpretations in both broad sense and narrow sense. Many of common law countries adopt the interpretation in broad sense, where there is no separation between guardianship and paternity and collectively named as guardianship. It is stipulated that parents are legal guardians of the minors. There is similar stipulation in Article 16, General Provisions of Civil Law in our country. However, various city law countries adopt the interpretation in narrow sense, where two systems of paternity and guardianship are established. The prerequisite of guardianship is no paternity or loss of paternity or inability to excise paternity. The minors' guardianship system is a vital system of law of kindred. The guardianship of the minors is a system that supervising and protecting the personal and property interests of the minors' according to law with the aim to protect the legal interests and rights of the minors'. With this; the nature of Guardianship system has made changes with its own historical development process. Nowadays, guardianship has changed from a pure right to a social responsibility that combines rights and obligation together focusing on obligation.In city law countries, the guardianship and paternity as two independent legal systems are coexisting all the time. In the chapter family law and kindred of German Civil Code, there is a section on parents care right, and in section one of chapter three, there is stipulation on guardianship. In Swiss Civil Code, paternity is included in the second section kindred of serial two law of kindred while guardianship is in section three; in chapter four of Japan Civil Code, there is stipulation on paternity in serial four while guardianship is in chapter five. In common laws countries, if the minors have parents who can excise paternity, then, the minors are under the protection of paternity, on the contrary, if parents of the minors' are dead or unable to excise paternity, then guardianship is set for them. Chinese General Provisions of Civil Law expands the concept of guardianship and puts paternity compulsorily into the guardianship of the minors'. Guardianship organizations stipulated in laws of various countries generally contain guardians, supervisors of guardianship, guardianship authorities and courts of guardianship and etc. however, in General Provisions of Civil Law of China, there are only stipulations on designated guardians and legal guardians. Some countries make specific stipulations on the content of guardianship, while the stipulation of China is general and abstract. They have a relative complete basic system of guardianship law; however, there are many deficiencies in the minors' guardianship system of China in this aspect.Common law countries, especially the German Law, the minors' guardianship system is with characteristics of strict codes, harmonious content, clear levels, complete regime and convenient to operate and others, on the contrary, the minors' guardianship system of Chinese current laws have many weak points. The domestic General Provisions of Civil Law puts paternity into guardianship forcibly and mixes them up in one legal system without considering their differences and scientific legislature, and lack of theoretical support. The existing guardianship system of the minors' is over general and principled but lack of operability which displays in aspects of unclear attribution of the elective (selected) applicants and the elective (selective) right, over-abstract stipulations on guardianship works, unclear stipulations on discharge system of guardians, malformed and stereotyped content, and weak operability. Since the promulgation of General Provisions on Civil Law in 1986, social life has changed greatly, but the minors' guardianship system of China has never renewed. The historical restriction of the content is more and more apparent and its operability and value are being lost gradually. The lack of Abilities of guardians selected and public guardians and difficulties in executing in practice have shown obvious historical restriction. Also there is lack of necessary basic system and functions, and there is no guardianship by parents' testamentary and commissioned guardianship. The guardian qualification system, guardianship supervision system, guardian discharge system, guardianship termination system, and administrative enforcement subjects are absent and also inadequate judicial intervention. Strictly speaking, there are many flaws for Chinese guardianship system of the minors to become a complete system. It is necessary to reconstruct the minors' guardianship system since its operability and due values are gradually lost.As the basic legal system of civil law, provisions of the minors' guardianship system are the basis of its legislature and judicatory. It is in the basic and advanced position among legal systems on the personal and property protection of the minors. It is necessary to learn from advanced legislature experiences in other countries to accelerate legislature process, fill the legal void and reconstruct the minors' guardianship system of China in order to put the minors whose parents are dead or unable to excise paternity to the protection of scientific, strict and complete guardianship system. The guardianship system and paternity system of the minors should have their independent legislature to do their own work and at the same time closely connect and complementary with each other.In the legislature reconstruction of the minors' guardianship system, the guardianship and paternity of the minors should be distinguished strictly in the style; what is more, the way of covering paternity with the concept of guardianship in the present General Provisions of Civil Law should not be adopted, the targets of guardianship are the minors who have no protection of paternity. The nature of the minors' guardianship and the reason for the set-up of guardianship for minors should be defined clearly. The stipulation of guardianship organization and related systems should be scientific. Guardians designated by parents' testamentary, commissioned guardians, associations and public guardians, guardianship supervisors should be extended, also adding the executive or judicial guardianship organs as guardianship authorities. Besides this, the qualification limitations of guardians and guardianship supervisors should be increased, and systems in aspects of duty, resignation discharge and obligation should be set up including guardianship termination system.