On The Adult Guardianship System

Legal act is the most active part in civil law existence. Civil law permits natural person to freely create and change legal relation through legal act according to his own idea. Natural person shall certainly possess necessary capacity for cognition and judgment, that is, capacity for conduct. This capacity is not inborn but endowed by law according to person's capacity for judgment. Adult with sanity possesses full capacity for conduct and can achieve expected effects through legal act, whereas adult with insanity or weak mind only possesses limited capacity for conduct or no capacity for conduct because he cannot understand consequences of his conduct. This legal disposition is not the discrimination against person deficient of mental abilities but the measure to take care of person who needs protection. On one hand, it prevents others reaping staggering profits when doing business with person deficient of mental abilities and on the other hand, when person deficient of mental abilities violates obligation, he cannot be imposed with such liability same as person with full capacity for conduct. Adult guardianship system is an important civil law system. It aims at protecting lawful rights and interests of adult under guard, constraining his conduct and preventing him from doing harm to society and others.Part one is focused on the defects in system of adult deficiency of capacity for conduct Due to reasons in many aspects, there are still some defects in traditional adult guardianship system: single type of guardianship; rigid selection and appointment of guardian. This is not helpful for achieving tenet of adult guardianship system. As for selection and appointment of guardian, traditional system generally regulates the sequence of guardian's selection and appointment, first the spouse, then lineal ascendant and lineal descendant. This regulation appears to be rational, but in practice, there are some reasons that shall not be neglected, that is, many people deficient of mental abilities have no spouse or lineal descendent and though they certainly have lineal ascendant, they cannot assume guardianship because they are too old. Supervision mechanism is weak, so it actually happens that the guardian uses his authority to infringe upon interests of person under guard. Besides, many guardians are often slack at guardianship, because supervision is not carried out concretely. As a result, many mental patients loaf around in society, which is very harmful for normal social order.Part two is the development of system of adult deficiency of capacity for conduct .The ongoing French Civil Code establishes a set of protection-oriented judicial protection system as legal relief for adult deficient of capacity for conduct. No65-8 Law of 1968 abolished declaration system of interdiction and quasi-interdiction and then modified system of guardianship and assistance for person of interdiction and quasi-interdiction in old law to adopt special protection for person deficient of mental abilities and deficient of capacity for will of intention or person who cannot protect themselves independently. The previous judicial fictional procedure has been replaced by three kinds of protection-oriented new judicial system. There was interdiction declaration system in old laws in German. This system was completely abolished after Reform Law on Adult Guardianship and Tutelage Care Law was enacted and came into force in nineties. Through this reform, laws cannot fiction deficiency of capacity for conduct. Certainly, laws do not acknowledge legal acts by person who irrationally forms capacity for intention without limitations. German Civil Code puts provisions about adult deficiency of capacity for conduct in chapter of legal acts, such as Clause 2, Article 104 and Clause 2, Article 105. Content of adult deficiency of capacity for conduct and adult guardianship system in Japanese Civil Law after modified includes: first, the new adult guardianship system consists of legal guardianship and discretionary guardianship system. Discretionary guardianship system greatly changes interdiction and quasi-interdiction system prescribed in old civil code. Therefore, in a sense, discretionary guardianship system create a brand new system through"laws on discretionary guardianship"; second, as for legal guardianship system, rigid system of"interdiction"and"quasi-interdiction"is replaced with operable and functional system composed of guardianship, tutelage and assistance; third, attach importance to personal independent self-decision. Decision for everyday life made by adult under guard is attached with importance and it is explicitly provided that this decision shall not be revoked; fourth, abolish the system that results of judgment of guardianship are recorded in his registered permanent residence. Establish new adult guardianship registration system and notify legal guardianship system and discretionary guardianship system through special registration system. Therefore, it eliminates the previous negative impression and adjusts relationship between adult guardianship system and transaction safety; fifth, in terms of selection and appointment of guardian, abolish system that the principal's spouse shall certainly act as guardian. It is possible to select and appoint plural guardians. Legal person can act as guardian. It also provides content of guardian's tasks and so on.Part three is focused on establishing the system of adult deficiency of capacity for conduct. It is necessary to create and establish a new discretionary guardianship system to protect person with insufficient capacity for judgment, based on the view of conforming to arrival of aging society and new concepts of protecting welfare of disabled people. In other words, it is a discretional agent system supervised by public authorities. According to regulations about agent in traditional civil law, people can sign mandate contract that grants agent right on guardianship affairs to the agent in order to prepare for decline of mental ability in the future. However, though such a contract is signed, the consignor, in fact, cannot monitor or supervise agent not to abuse authority when the consignor has insufficient mental ability. Therefore, discretionary guardianship system adopts the method of supervision by public authorities to guarantee agent to still fulfill his duty when the consignor has insufficient mental ability while he adopts form of discretionary contract to select and appoint agent. Discretionary guardianship refers to concluding a mandate contract that enables the guardian to guard the consignor's personal affairs after he loses mental ability on the premise that the consignor still has full mental ability, so scope of responsibilities of discretionary guardians depends on content of the contract.Part four is the choice of china in system of adult deficiency of capacity for conduct. The author inclines to follow Japanese system to establish our system, that is, completely abolish declaration system of adult deficiency of capacity for conduct, chapter of legal acts in General Principle shall provide, we shall determine of force of acts of person deficient of mental abilities according to specific mental conditions, in other words, adopt system of individual case judgment to determine force of act with comprehensive examination of mental conditions while acting, whether he can predict legal consequence of acts, degree of sense of self-protection and so on. Then design guardianship system in Volume of Kinship, classify legal guardianship into several types, such as guardianship, tutelage, assistance and so on to adapt to different circumstances of person deficient of mental abilities and especially prescribe discretionary guardianship system and guardianship authorities to respect free will of person deficient of mental abilities.