Research On Guardianship System

Guardianship system is an important civil legal system, which is aimed at protecting the person, property and other lawful rights and interests of the special civil subjects who have no capacity or limited capacity for civil conduct. According to the different definities of civil subjects, the traditional civil law divides guardianship system into the generalized guardianship(big guardianship) and the narrow sense guardianship(small guardianship). From the perspective of public law, the State is obligated to provide living and development conditions for the people such as the aged, the weak, the sick, the disabled, the young, and so on, in particular should ensure that those wards who have no or limited capacity for civil conduct. However, the State is very cunning and cleverly to set up the guardianship system, which passed their responsibility to the families so that the guardianship system had the nature of heavy relatives from its birth on. In this sense, the guardianship system is a combinational civil legal system about the right of private and public. From the perspective of private law, each person has equal personality or equal capacity for civil right. However, in order to guarantee the lawful rights and interests of each the civil subjects equally, civil law does not give everyone exactly the same as the capacity for civil conduct, the capacity for civil duty. Civil law divided the capacity for civil conduct into three conditions: full capacity,limited capacity and without capacity for civil conduct. The men who have full capacity can freely engage in civil activities and are responsible for their own actions, the people have no or limited capacity for civil conduct can not be free to engage in civil activities, they aren't necessarily responsible for their own civil activities. Therefore, the law sets up a guardianship for those people who have limited or no capacity for civil conduct, they were added the capacity of civil conduct and civil liability by their guardians, and public power authorities of the State and other civil subjects both guarantee the wards to own the capacity of equall civil rights for achieving equal personality of all people, that is, everyone is equal. I have studied the guardianship system, not only for its importance in theory , but also the meaning of the urgent in the reality. Firstly, revolution of the guardianship system can eliminate the lagging of the legislation quickly. Secondly, it can give full play to the social function. Thirdly, it will enable guardianship legislation model more reasonable. Our future Civil Code should include, "Part I General provisions; Part II Debt; Part III Property; Part IV Relatives; Part V Inheritance ",it would put Guardianship System into Relatives, Part IV Relatives should include: marriage, parents and children, parental authority, adoption, guardianship, custody, and other contents , guardianship is the embodiment of parental authority for establishing a complete, coordinated and complementary system of relatives. Fourthly, it can add, improve and deepen the guardianship system theory to regulate the complicated relations of guardianship legelation effectively in reality.Guardianship system originated in ancient Roman law, the earliest was written on the "12 Copper Table," the Fifth Form "Inheritance and Guardianship", a total of 10. Ancient Rome set up monitoring system and safeguard system, that is designed to protect the family's property interests, and they were directed at the people who had the right to self-designed. The guardianship system of Civil law countries had the inheritance and development of Roman law and the guardianship legislation of the common law was effected by it. However, the larger changes have been taken place in the guardianship legislation in modern countries. The reform of guardianship legislation as follows: equal custody of their parents; The abolition of the dominant in the physical custody, stressed the duties of the guardian; Guardianship is getting socialization and public rights; to abolish the interdicted system and quasi-interdicted system of adult guardianship system; The principle of the best interests of the wards; to respect the self-decisions of the wards. For adults custody, taken by the British law is continuing agent system, and taken by the USA is France Trust guardianship system. Patriarchal system for parents was implemented in our country at ancient, so there will be no any space for guardianship, children rearing, bringing up the disable, alimony elderly parents and so forth affairs were all resolved by the parents. China would be the first time provides guardianship system in statute in 1911, "the draft of Tsing law." The government of the Old China enacted the Republic of China Civil Code in 1930, setting up a guardianship system in the relatives chapter. After founding of the People's Republic of China, civil legislation did not receive attention, the legislative process has been rather slowly, the legislative people have not cared the guardianship system for a long time. "General Principles of the Civil Law of the People's Republic of China" effected as of January 1, 1987. guardianship system was dominated in Chapter II. The evolution of legislative standard of guardianship system shoud be as follows: legislation based on home -legislation based on guardians -legislation based on the guarded people - legislation based on the interests of the sociaty.Our rough guardianship law is a simple, poorly enforceable system, it is not isolated guardianship and parental right. The rights and the obligations of the guardian are unequal. The General Principles of the Civil Law of the People's Republic of China provides statutory guardianship, designated custody and commissioned custody, it does not provide wills guardianship, the provisions of legal guardian have been very unreasonable. To determine the guardian, it should consider not only the capacity of guardianship, but also their willing to be a guardian, the personal integrity of the guardian must be considered also. Of course, the relationship between the guardian and the wards and the idea of the wards should be considered. The legislation of China ignored the right provisions of the guardian, so the rights and obligations of the guardian are extremely unequal, which is extremely unfair to the guardian, the guardian should have the right to seek equal pay, and the right to reject, the right to say no or stay. Our adult guardianship system has not been revised in 20 years, the provisions of the adult guarded people seems too narrow. The way of guardianship is simple, brutal. The object of Adults custody should be determined again, these people lacking viability, the ones lacking judgment and the ones with intellectual disabilities, the disabled, the weak consumption and aging adults should be included. For the disabled and elder guardianship, China should introduce "Normalization" and "Respect for the right of self-decision"-a new concept. The guardianship legislation of China should discard units, neighborhood committees, or village committee as a guardianship authority's ideology, only the people's court can be the guardianship authority. Our law does not provide guardianship oversight bodies, the future Civil Code should set up oversight bodies specially. Those who does not serve as guardians and the close relatives should serve as guardianship monitoring bodies, the neighborhood committees or the villagers committees and local civil affairs departments should serve as guardianship monitoring bodies, too. The local civil affairs departments dedicated "guardianship oversight office" as a permanent government institutions which ministry the Civil affairs. The building dedicated "guardianship protection office," it is mainly responsible for security funds for the budget, allocation and audit and monitor security and other related work. " The principle of the best interests of the wards " is the principle of the exercise of guardianship, custody duties include: personal caring, property management, represents the wards to participate in civil activities and litigation activities. The imputation for guardianship mainly is no-fault liability principle. The liability of clients based on the fault liability principle. The imputed negligence liability principle should be introduced in the future Civil Code as well, we should establish a distinctional imputation system which includes the no-fault liability principle, the fault liability principle and the imputed negligence liability principle, too.