A Study On The Legal Guardianship System Of Chinese

From the ancient Rome period, the guardianship system has been in the form of statute law. Along with the development of social history, the legislation of all countries in the world was set up to adapt to the national conditions of the adult guardianship system, but all follow the legislation system of Rome. With the development of history, social economy and social changes in the population structure, the idea of new legislation such as "human rights protection" and "physical and mental care" and "normalization" gradually rise, and accept to be reflected in the legislation reform for,many countries. Compared the formation time of ancient Rome adult guardianship system, in ancient China, the statute is not clearly defined, "Confucianism" and "patriarchal" in our country plays a role of law for a long time. The adult guardianship system really began to appear in the form of statutory law was in the late Qing Dynasty, and since the government of the Republic of China, adult guardianship system was set up until at the end of the 80’s. However, at the beginning of the design of the system, loopholes of the old legislation concept appeared one after another. Because at first it was intended to maintain a stable social order and safeguard social stability, but ignored the personal freedom of rights and interests. As a result, such a system will cause a series of guardian abuse or marginalized social problems and so on.A single general style of care management mode of civil law in our country now to take the adult guardianship system, in the procedural law of a person without capacity for civil conduct and also stipulated that the declaration system. But the modern medical evidence, probably because of its spirit, health, intelligence and other reasons mean ability or incapacity of adults, or have the ability of basic civil behavior recognition, and some can participate in some social activities. And the law ignored this part will be all or part of the deprivation is clearly inappropriate. China has been faced with the social issues of the aging of the population, elderly people living alone suicide event also repeatedly occurs, many more behavior ability consciousness and lack of the ability of the subject to legal protection. How to maintain such vulnerable group rights, in addition to improve the social welfare of these people to improve the legal system is the best way. Adult guardianship system in our country need to update the legislation ideas of the reform of legal system in compliance with the international protection of human rights and the trend of social development.This paper uses the history of social science, natural science and social science and clinical psychiatry, mental health law and other disciplines of knowledge, the basic problem that the construction of China’s adult guardianship system and give an analysis of the final implementation of recommendations to improve the construction of the new system. In studying the norms of civil law, this paper also deals with a wide range of research methods, mainly by method of comparative law analysis of the foreign legislation and our country adult guardianship system content and the legislative concept compared, found that our legislation shortcomings and learn from advanced foreign legislative experience. Based on the historical analysis method from ancient times to the present, China’s dynasties evolution of adult guardianship system, the positive jurisprudence method analysis reveals the current system and the judicial interpretation of the drawbacks. In addition, sociology, sociology of law, the current adult guardianship system in the operation of social effects are analyzed, on the improvement of adult guardianship system and puts forward legislative suggestions.Besides the introduction and conclusion, the text is divided into three parts, a total of 31,000 Chinese characters.This first part of the paper, analyzes the status of China’s adult guardianship system and problems. Firstly, analysis of the current situation of legislation on the adult guardianship system in civil law of our country. Including subject of guardianship, the guardian of the setting range and selection, the guardian of the qualifications and responsibilities, monitoring of setting up supervision, alteration and termination and guardianship supervision and cancellation of several aspects. Secondly, puts forward the problems existing in the current adult guardianship system, for example, guardian scope is too narrow; guardianship person care provision is too principle; the guardianship provisions are not clear and scientific; the lack of the guardian’s rights; imperfect guardianship; monitoring measures type is too single; lack of procedure safeguard system of monitoring; supervision mechanism is not perfect; monitoring of social public power is not enough. Thus, because of a series reason, the rights of vulnerable groups have been ignored; social isolation and discrimination phenomenon, the elderly lonely death phenomenon, social crime rate rises higher and so on.The second part of this paper, the theory of legal guardianship system for adults. This part analysis the content of the legal guardianship system constitutes one by one, and introduce foreign guardianship system, compare our adult guardianship system in the presence of, hoping to get the conclusion for the reform of our country. Include, first, pupillus analysis, analysis of China’s guardianship subject, the analogy to other countries is the scope of monitoring body and be analyzed one by one; second, analysis of the monitoring body type, respectively for monitoring execution(Guardian), monitoring human rights, monitoring and supervision of the selection and range and qualification etc. are discussed; the third, adult guardianship system custody content analysis, custody is divided into three parts respectively, duties, responsibilities, rights, obligations, and the contents of the three parts; fourth, the adult statutory supervision support measures the type of analysis. The analysis of foreign guardianship system measures type and interests to explore suitable for China’s economic and social development of the mode of weighing; fourth, security analysis program of adult guardianship, divided into two aspects: starting procedure and publicity program.The third part is the key part of this paper, combined with the context of the proposed amendments and perfect our adult guardianship system legislation, this part is mainly on the basis of the second part proposed The improvement measures of the legal adult guardianship system are as follows: First, the root of the legislative reform is to reform the legislative idea and update the system in the civil law system. "The guardian" normal life "is the guardian of the self-determination consciousness" legislative idea should be in the legislative reform and reflected the dominant ideology, weaken the original focus too much on the trade balance mode of legislation. Second, the main part of the system, including expanding guardian, custodian of the legislative proposals, put forward the legislative proposals for the reform of the legal guardian. Third, standardizes the content of the legal guardianship, custody in adults. Fourth, construct legal adult guardianship security procedures. Fifth, further subdivided the adult statutory guardianship type, draw lessons from Japan’s legislation establishment of guardianship, curatorship, auxiliary three types of guardianship measures guarantee the guardian of human rights.Adult guardianship system in relation to the solution of a major social problem in China, such as the protection of human rights, social justice, transaction security, "the old can be according to" and so on, generally speaking, at present China’s adult guardianship legislation is almost blank, the existing legislation exists the defects of legislation is not scientific, monitoring the object scope is too narrow, guardianship legislation philosophy of old, legislative lack of content of, we must reform and tries to make up for, build perfect adult guardianship system is not a simple project, need country into a large number of social practice investigation and manpower and financial resources. But the establishment of the system, whether it is the proportion of the legislative law enforcement and the actual results of the balance, or from the protection of civil rights and interests of human legislation and social welfare to prove that the feasibility is beyond doubt.