The Study On Voluntary Guardianship System

Guardianship system established for protecting vulnerable groups can be dividedinto legal guardianship and voluntary guardianship according to their differentreasons. Legal guardianship refers to guardianship produced according to directprovisions of law, in which oneself and guardians do not have the right to select ontheir own. Voluntary guardianship is a system in which oneself and guardians reachan agreement with respect to guardianship items and the contract of voluntaryguardianship takes effect and voluntary guardianship begins when the court selectsany supervisor of voluntary guardianship after oneself lacks capacity of will. Itguarantees the realization of the will of oneself to the greatest extent within theminimum intervention scope of national public power. In both developed countriessuch as America, England, Germany and Japan and developing country China, theproblem of aging of population has become increasingly prominent and the originaladult guardianship system under the premise of deprival or restriction of disposingcapacity could not adapt to the arrival of aging society due to such defects as narrowscope of guardianship object and specific order requirements of guardians and wasrenovated. Various countries have added the system of voluntary guardianship oneafter another. Currently, voluntary guardianship only exists in academic discussion inChina. It does not belong to legislative blank yet. Foreign legislative practice relatedto the system of voluntary guardianship provides precious experience for theestablishment of the system of voluntary guardianship in China.voluntary guardianship forms a sharp contrast to legal guardianship whichemphasizes the maintenance of transaction order and interests of oneself and ignoresrights of guardians and in which guardians have excessive obligations. Theconsistency of rights and obligations in voluntary guardianship is more obvious.Oneself and Voluntary guardianship can reach an agreement with respect to theirrights and obligations when signing the contract of voluntary guardianship. Voluntaryguardianship shall enjoy such rights as the right of claim for compensation and the right to resign when implementing guardianship services. The particularity ofproperties of the system of voluntary guardianship determines the particularity of itsfunctions. Besides general functions of guardianship such as compensation for defectsof disposing capacity of oneself, protection of legitimate interests of oneself andmaintenance of normal transaction order, its main functions include reflecting the willof oneself to the greatest extent and relieving the pressure of family supporting. In thesystem of voluntary guardianship, the contract of voluntary guardianship in whichoneself and Voluntary guardianship reach a consensus with respect to all or part ofpersonal or property items is the core and foundation of the system of voluntaryguardianship as well as the result of autonomy of will of both parties and meetsrequirements of autonomy of private law. The contract of voluntary guardianship is acontract with entry-into-force conditions and takes effect when the court selects thesupervisor of voluntary guardianship. The intervention of the court is not the damageto autonomy of private law, but is its due meaning. Compared to other ways ofold-age care, family supporting established based on family affection hasincomparable superiority. However, with the constant development and change ofChinese population structure, the increase of population mobility and the change oftraditional concept of filial piety, family supporting way established based on bloodrelationship and geographical relationship can no longer adapt to the need of thesociety with rapid development. In the system of voluntary guardianship, oneself canselect anyone he/she trusts as guardian and there is no requirement for the order ofguardians. The aged without children or whose children cannot execute guardianshipconveniently can realize the designation of guardian and grant the guardian the rightof agency of some items in the case of lack of capacity of will. They don’t have toworry about the lack of qualified guardian when they are old.The system of voluntary guardianship covers wide contents such as guardianship,agency and contract. Before the unveiling of civil code, systematic provisions can beestablished in the form of separate legislation. As oneself is in the state of lack ofcapacity of will after the beginning of voluntary guardianship, to provide legal basisfor the execution of guardianship by Voluntary guardianship, the contract of voluntaryguardianship must be fixed in written form and registered and registration authority must examine contents of the contract. Oneself shall not grant guardian the right ofagency for such contents as marriage, testament, execution of the right to vote andgratuitous property gift. voluntary guardianship and legal guardianship run parallel. Inthe stage of establishment of contract of voluntary guardianship and after the contracttakes effect, voluntary guardianship might turn to legal guardianship due todisqualification of guardian.