On The Legal System Construction Of Voluntary Guardianship

The Voluntary Guardianship system is that an adult, who have ability of complete behavior, can achieve a consensus about custody that may occur in the future with whom he trusts, and grant them to be his guardian. And when the person is incapable of managing his own affairs because of physical or mental handicap, the guardian should be responsible for him according to the contract. The Voluntary Guardianship emerged in the international reformation of adults’ guardianship in the late 20 th century, under a great background of aging society. The guardianship system conforms to the modern concept of human rights and respects the rights of self-decision-making.China is still a developing country, but the problem of population aging has emerged. People are becoming old before becoming rich. And as a result of national policy of birth control, our country has a unique social problem. The problem is that families losed their only one child have no one to rely on. Meanwhile, there are other problems that demand the reformation of guardianship system to alleviate the stress of family custody, such as the special custody one vegetative being needs, the aggravated family burden because of the custody of disabled person and so on. However, our civil law didn’t change during the international reformation of adults’ guardianship. And the Voluntary Guardianship for elderly people is only brought up for the first time in our legislation on “the People’s Republic of Chinese protection law of the elderly people’s rights and interests” implemented in July, 2013. The law didn’t specify the methods and procedures of implementation, so it lacks of execution in some level. Therefore, if the Voluntary Guardianship system in our country is only applied on the custody of the elderly, it won’t give full play in solving the practical problems. This paper extend scope of the Voluntary Guardianship system to the adults’ guardianship.Through the comparative analysis of Arbitrary Guardianship System on various countries’ legislation samples, firstly, the author carries out theoretical research,systematically introduces connotation, background of generation, origin, and functions of Voluntary Guardianship System. Secondly, the author carries out horizontal comparison between Voluntary Guardianship System and China’s current civil law system based on defects of China’s social problems and current guardianship system,and analyzes advantages of Voluntary Guardianship System. The author also combines Voluntary Guardianship System with China’s civil law theory and judicial practicetogether, and finds out necessity and feasibility of establishment of Voluntary Guardianship System from both positive and negative surfaces. Finally, by considering the needs of entity and procedures, the author specifically sets up legislation samples,basic principles, main elements, contract rules, supervision system and a series content of Voluntary Guardianship System from contract, agency, guardianship supervision and other content involved with Voluntary Guardianship System.This paper considers the function that Voluntary Guardianship System can ease pressure of family guardianship has a positive effect on implementation of "Fully Opening of Two-child Policy". The paper also innovatively applies of necessary and sufficient conditions, and finds out that the Voluntary Guardianship contract could come into effect if it simultaneously meets insufficient capacity of intention in person, suitable guardian and court’s determination on supervisor of guardianship total three composite conditions. The article proposes to set up multi-level public power supervision mode that is "core, auxiliary, and pioneer", in specific settings of supervisory organization. As the same time, the text puts forward constructive suggestions on construction of Voluntary Guardianship System, so as to further provide strong support for improving the guardianship system.