The Defects And Perfection Of System Of Guardianship In China

The guardianship of our country is an important legal system which supervises and protects the personal right, property right and other legitimate interests of the minors and mental patients. Although this legal system which was first established in the General Principles of Civil Code of 1987 has some effect upon the protection of the minors and mental patients of our country, it has obviously fallen behind the contemporary era and has shown a lot of inappropriate provisions which need systematically research and amendment.This essay analyzes the main defects of the existing guardianship of our country mainly by comparative research and puts forward corresponding suggestions of amendment on the basis of generalizing and referring to foreign experience, which tries to help perfecting the guardianship of our country.Firstly, the essay explains the definition of guardianship in our country and the meaning of guardianship in traditional civil law countries separately and generalizes traditional guardianship theory which is characterized by the system of interdiction. It determines the nature of guardianship as responsibility, reviews the history of guardianship and points out the trend of contemporary guardianship system: the abolition of the system of declaration of interdiction, introduction of casual guardianship and innovation of legal guardianship.Secondly, the essay points out main defects existed in the guardianship of our country and reviews relevant conditions.Thirdly, the essay generalizes the amendment of guardianship in Japan, focuses on explaining the highlight of new system, the casual guardianship and points out the inspiration to the amendment of guardianship in our country.Lastly, the essay puts forward specific suggestions of amendment on the basis of the generalization of contemporary trend of guardianship, the analysis of defects and the reference to the experience of other countries, such as Japan.The most outstanding characteristics of this essay are as follows:1. Using comparative method to identify the difference and make right choices, for example, comparing our country with traditional civil law countries, comparing the same system in different historical periods and comparing the same problem in different subjects, etc.2. Thinking open, not restricted to civil law, even not restricted to the legal theory; making the perspective clearer and more convincing by using practical problems in the area of civil procedure, the study results of modern mental medicine and relevant theories of forensic medicine as arguments during the analysis of capacity defects of adults and the declaration system.3. suggesting substituting the system of declaration of interdiction for reviewing the facts of each case; changing the three-category of adult capacity into two-category, that is, dividing the legal capacity of adults into "full legal capacity" and "no legal capacity".