Guardianship System In China Explored

The regulations in our country's guardianship system are mainly represented in General Principles of the Civil Law and relevant civil legal regulations. For its own characteristics and subjective and objective limits of that time when it took in form, General Principles of the Civil Law is too abstract and inaccurate as well as bearing some taste of planning economy in guardianship regulations. Therefore it is hard to adapt to the present situations of social and familial relationships thus hard to operate. Dim distinction between paternal power and guardianship one, chaos in categories of guardianship, confusion in contents of guardianship affairs and negligence to the rights of guardianer are all bad for the perfection of civil legal system and maintenance of normal social order. Such legal defects in guardianship system will surely lead to difficulties in guardianship practice. In order to perfect the guardianship system, the author intends to explore the issue of guardianship. The paper in divided into five parts as follows. Section Ⅰ preludeSimply explain the significance of establishing guardianship system. Briefly analyse the General Principles of the Civil Law and relevant civil laws and point out their defects and the goal of writing this article. Section Ⅱ introductionsThis section can be separated into two parts.Part one: the nature of guardianship.In terms of the nature or guardianship being a civil right or a responsibility or a liability, different scholars have different ideas, which forms various theories. By the way of analyzing and comparing different theories on guardianship in history and combining our country's legal practice, the author's view is presented in this part. Guardianship system has double functions of public and private law, which is of obvious responsibility, pubic interest and liability.Part two: the historical evolution of guardianship system.The four stages in its historical development are discussed here, which include kinship autonomy stage, the forming stage of guardianship system, pre-war stage (World War II) andafter-war stage in time order. Then we'll have an overview of the historical evolution process from familialism to individualism and nationalism.Section III comparative study of guardianship systemMainly analysis the historical development of the guardianship system in France, Germany, the United States, Japan and other developed capitalist country and their respective characteristics, which offers better reference for the perfection of guardianship system.Section IV the present situation and shortcomings of guardianship systemThrough analyzing the present situation of the legislation and legal practice of guardianship, the six flaws of our guardianship system are discussed in this part. (1) the contents of guardianship is too abstract. (2) no distinction between paternal power and guardianship one. (3) the regulations of guardianer's qualifications are not perfect enough. (4) the categories of guardianer are not practical. (5) no supervisory institutions (6) not perfect in the regulations of guardianer's right.Section V some legal thoughts on the perfection of our country's guardianship systemCorresponding analysis and proposal of six objectives and methods on legislation and judicatory reforms in terms of the six weaknesses of our guardianship system. (1) further improve guardianship legislation skills and perfect the contents of guardianship. (2) correctly distinguish paternal power and guardianship right. (3) clearly and specifically regulate the guardianer's qualifications. (4) practically regulate the categories of guardianship and guardianer. (5) perfect the supervisory institutions of the guardianship. (6) evidently regulate the rights of guardianers.