Research On Elderly Guardianship System Under The Joint Of Public And Private Law

In the development from traditional civil law to the modern civil law, the state should be in the active position and should not be a “night watchman” during defending private autonomy maximize. The original purpose of the public right is to realize private rights. Besides, it will play an active role in the use of social resources efficiently and avoid waste these resources. Only in this way can we make sure the social welfare in a orderly state. That is to say, during the period of social transformation, the autonomy of private law is as important as the national regulation. Elderly guardianship system has been laid down in “Protection Law for the Elderly”to meet the need of aging society as well as conform to the trend of international protection of human rights. In addition, it makes up the gaps in the elderly care section of the legislation. However, there are still existing some questions in this system. Firstly, it loses sight of the enhancing the national obligation as well as the design system is not so specific. This paper is based on the current situation in the elderly guardianship system, then discuss its remaining deficiencies and then study the viable model of elderly guardianship system in two law systems in order to make it correct to implant the public and private law practice into this system. Finally, I will discuss the way how to make the system come to realize including the appointed custody contract and the monitoring mechanisms to highlight the appropriate public authority.In the first part, I will introduce the legal regulation of elderly guardianship system such as its concept and function. Besides, I will analyze the defects of legal guardianship system and designated guardianship system. And then, I will focus on the advantages of the elderly guardianship system. Last, I will explain the concept and the birth of reason of elderly guardianship system.In the second part, I will analyze the situation and the insufficiency of elderly guardianship system. Although it complies with the aging era as well as makes up the gaps of elderly care in guardianship system. There are still existing many questions such as the dated legislative concepts, the unspecific design. That is to say, the main body of this system is too narrow and the guardian qualification is not clear. Besides, the contents of the contract and effective elements are still indistinct. Last but not least, the guardianship supervision is defective.In the third part, I will study the elderly guardianship system in two legal laws such as the development, the scientific model of the lasting power of attorney granting system and arbitrary guardianship system in order to discover the mature way to perfect the elderly guardianship system.The fourth part of this paper is to investigate the way how to perfect the elderly guardianship system. I will focus on the path of the system. The autonomy of private law is as important as the national regulation. They should all be included in this system. The first section will demonstrate the necessity of implanting the way of public private partnership into this system. Then in the following part I will further discuss how to make the appointed custody contract and the supervision mechanism sufficient.