Research Of The Special Procedure Concering Determination Of A Citizen As Incompetent Or With Limited Disposing Capacity

As one of the most important legal status,the capacity for civil conduct can affect all aspects of the daily lives of citizens.Therefore,if a citizen’s capacity for civil conduct need to be determined by court,it must through the statutory procedures.In recent years,there have been many serious incidents caused by the problem of citizen’s capacity for civil conduct,causing a widespread concern in society,for example, the forced psychiatric treatment case. However,it is puzzing that the special procedure concering determination of a citizen as incompetent or with limited disposing capacity which provided in civil litigation is difficult to star or unable to play its due role in the procedure runs during the forced psychiatric treatment case. This is not conducive to the protection of the legitimate rights and interests of the citizens of their own, not conducive to protecting the legitimate rights and interests of close relatives and interested parties, is not conducive to the maintenance of public order of society.Alought the special procedure concering determination of a citizen as incompetent or with limited disposing capacity is provided in our country’s civil procedure law,in the actual operation,it is basically idle. The reason should be multifaceted, including legislation flawed, not pay enough attention to theoretical research, and citizens in community don’t know much about this special procedure.So in order to reflect and improve this special procedure,the author try to carry out systematic research on this special procedure and analyze the deficiencies of it.Then the author will make recommendations about the reconstruction of this special procedure so that this special procedure can play its due role in society.This paper consists of four chapters:The first chapter is about the basic overview on the capacity for civil conduct and its determined procedure.In this chapters,first of all, author compare and analyze the definition of the capacity for civil conduct,incompetent,limited disposing capacity.Secondly,base on the summary of the foreign definition similar with incompetent and limited disposing capacity,author summed up the factors which affect the capacity for civil conduct.After that,author change the viewpoint to the procedure, then analyzes the definition and nature of special procedure concering determination of a citizen as incompetent or with limited disposing capacity with the point of view about legislation and academic.Finally, author got a conclusion that in China,at present, the nature of special procedure concering determination of a citizen as incompetent or with limited disposing capacity is limited.So that it can not satisfy the needs of the community and should be improved.The second chapter is about the present situation of the special procedure concering determination of a citizen as incompetent or with limited disposing capacity.This chapter is base on the first chapter’s contents,author analyze the legislation flawed and the operation obstacle of the special procedure concering determination of a citizen as incompetent or with limited disposing capacity.In author’s opinion the legislation flaweds of this special procedure include scope of application is not clear,the subjects which have right to star this special procedure is not enough,the court couldn’t award the custody of incompetent in this procedure.And the operation obstacle of this special procedure is reflected in it is basically idle in operation,it can’t be stared successfully,the evidence of judgement is not clearly.At the end of this chapter,author presents the reason of the legislation flawed and the operation obstacle.The third chapter is about some core issues which improving the special procedure concering determination of a citizen as incompetent or with limited disposing capacity.In this chapter,fistly,author make a reflection and innovation on the nature of this special procedure and add some new functions.For example,the court can award the custody of incompetent to the citizen’s immediate family in this special procedure.Secondly,author distributes the staring right of this special procedure to more subject.The Procuratorate can star this special procedure in special circumstances.Finally,author set the judical expert conclusions for the necessary evidence in the court’s judgement. The forth chapter is about the reconstruction of the special procedure concering determination of a citizen as incompetent or with limited disposing capacity.In this chapter,author put the viewpoint on the procedure’s running.And then make recommendations about the reconstruction of this special procedure from three parts,including:bringing a lawsuit and entertaining a case, trial in Court,judgement and remedies.In addition,author described the special rules concering the Procuratorate in this special procedure and the effect of the Court’s judgement.Finally,author made supporting measures in three ways:civil laws,judical aid and law propaganda.