The Guardianship System By Theory Of The Elderly

Concept of autonomy has been a basic component part of the modern civil law,at the same time to the principle of party autonomy in state intervention in the concept of legal paternalism to improve before the autonomy, achieve a relative balance between state intervention and autonomy, this is the global trend of development of civil law is also a part of the our country civil law to complement. In an ageing population growing and growing conditions, human rights of the elderly guardianship system in China has not meet the need of reality, from the legislative ideas to the legislation content, have greatly change the space. Major countries of two important legal systems have abolished behavior capacity announcement system, to absorb “respect to self determination ”and “to maintain the normalization of life I”, the new idea, change and develop by guardianship system.Worthy of the good news is, our country revised in 2012, the protection of old people’s rights, which has laid down by article 26 guardianship system. But there is the principle rules of law is not enough, both in system and content of the guardianship system in China has many imperfections. This article as a starting point,from the countries of the guardianship system formed by the course of seeking experience, combined with the actual situation in our country, hope to provide certain help to perfect our legislation.In this paper to remove the introduction is divided into four most:The first part, the elderly guardianship system by overview section, This chapter is mainly for the elderly guardianship system by the concept and meaning of the following overview, the elderly guardianship system is to point to by when the elderly have completely or partially meaning ability and capacity for civil conduct, the person or organization to choose our trust by themselves in the future, in the form of contract supervision authority granted to them, in the mean lost or partially lost his capacity and capacity for civil conduct. The first part, the elderly guardianship system by overview section. This chapter is mainly for the elderly guardianship system by the concept and meaning of the following overview, the elderly guardianship system is to point to by when the elderly have completely or partially meaning ability and capacity for civil conduct, the person or organization to choose our trust by themselves in the future, in the form of contract supervision authority granted to them, in the mean lost or partially lost his capacity and capacity for civil conduct, the guardian by began to perform the contract under the supervision of related transaction; Its theoretical significance is to perfect the basic theory of civil law in our country, the reality is can let the elderly achieve self-determination and solve the problem of pension; Finally with the elderly guardianship system by similar legal guardianship system, monitoring system, principal-agent system and legacy support system of the four compares the similarities and differences.The second part, the development of the elderly guardianship system by different modes and elucidated. This part, first of all, the system of the DPA of Anglo-American law system in the United States for the elderly by the birth of the guardianship system and the EPA system for the development of the elderly guardianship system by the introduction; Then in continental law system for the development of the elderly guardianship system by the introduction, such as Japan’s legal guardian and that of the guardianship by coexistence pattern, South Korea, Germany prevention authorization pattern “of the guardianship by contract” mode, and the relevant provisions of our country Taiwan area; Finally, the author through to the Anglo-American law system and continental law system to middle-aged and old people set the guardianship system of comparative analysis it is concluded that in common.The third part, the creation of the elderly guardianship system the necessity of setting part. This part, first of all, from the current situation of the development of our country social old people analysis, through to our country in recent years the population access contrast it is concluded that China’s demographic transition period has come after and analyzes the current way of guardianship in our country it is concluded that the current way of guardianship need perfect; Secondly this part for the elderly guardianship system by added to strengthen the our country civil law related content, such as the elderly guardianship system by added to strengthen the civil subject system in China in the old people’s rights,the meaning of respect; The elderly guardianship system by added to strengthen the legal point of view and social view the family marriage system in China; Guardianship system in the contract is signed with the principle of contract law in our country the same, so its better to strengthen the related content of contract law in our country; And then this part starting from the demand of the development of the Chinese concept of human rights, demonstrate our country to establish the elderly guardianship system by not only for the reform and perfection of our country adult guardianship system, but also protect the vulnerable groups “self-determination”; Through the analysis of the last from the international advanced concepts in our country to establish the elderly guardianship system is by our country law to adapt to the needs of the international advanced ideas.The fourth part, the elderly guardianship system by creating section. This chapter is an important part of this article, first of all, the elderly by monitoring the produce is made up of two parts: first, by mutual agreement between parties in the custody of the elderly by contract is the core of the elderly guardianship system by; Second, based on elderly care by the contract, the use of national public power to select the elderly of the supervision by the guardian to prevent guardian or delayed in the exercise of power abuse of public power supervision system; Then, the elderly guardianship system by types are divided into two kinds, namely real-time monitoring and by elderly by monitoring after the elderly. Later, this chapter for the elderly by guardians guardianship of the duties of guardianship for instructions, the elderly by guardians guardianship of the duties of guardianship may be either legal behavior and can be a fact behavior; And then this chapter for the elderly by guardian’s qualifications and the elderly care about by agreement in the contract by monitoring the content of the contract, effectiveness, and gives a brief introduction of the registration; Finally, this chapter for the elderly guardianship system by the end of two types, gives a brief introduction of the absolute and relative terminate.The fifth part,the elderly by monitoring the supervision of the implementation of part. First of all, this chapter to analyze the necessity of the elderly of the guardianship by monitor, it is concluded that the elderly by monitoring of the supervision is the need of social actual situation in our country and for the elderly is the supervision of the supervision by choice in most countries of the world; Then, the author for the elderly by the establishment of guardianship supervision through the analysis of some data, for the elderly by monitoring are implemented by mutual agreement between parties, so for guardianship supervisor is also determined by the ward choice; And for the elderly by outside supervision responsibility and supervision of the duties of guardianship supervisor responsibility is analyzed; Finally through analyzing the elderly guardianship supervision organs set up by foreign experience for reference, it is concluded that our country should put the people’s court for older people in our country by monitoring supervision authority.