The Study On Voluntary Guardianship System

The aged tendency of population in our country is deepening in recent years, with the increasing of the age, body function decline, mental retardation, mental problems such as weak consumption begin to highlight. Adult guardianship system is limited to the existing legal guardianship, which is aimed at incapacity and the limited incapacity. This system can not solve those problems that elderly human beings faced, such as personal care, property management and treatment issues. The capacity of will is divided into two categories inflexibly and is declared them the “incapacity” or “limited incapacity” in judicial proceedings.The parties can no longer engage in legal acts according to their own means. Although it can protect the security of transaction, it goes against the principle of autonomy in the civil law. In 2012, China promulgated the “the protection of old people’s rights”. It mentioned that guardians can be selected according to their own will; however it did not make specific provisions. The research of the guardianship system has great significance to the revision of the civil code in future.In the first chapter, the article described the basic theory of the guardianship system briefly. Then analyzed the guardianship system from Roman time to the inheritance of modern countries and modern development. Since China does not set the doctrinal concept of guardianship, we need to draw on the basic conception of the guardianship from other country. Try to define the given guardianship in combination with the basic theory of adult guardianship in our country.In the second chapter, the main content of this part is comparison and study the voluntary guardianship system of Continental law. After describing the given guardianship system of The United States, Britain and other countries, the article analyzes the advantages and disadvantages of the existing system of Common law countries, then describes the given guardianship system of Japan,Germany and other countries. And also, analyzes the advantages and disadvantages of the existing system. Different districts and countries have different provides and theories on voluntary guardianship system.It is worth to using for reference.In the third chapter, the article analyzes the problems and deficiencies of the adult guardianship system that exists now, from two aspects of theories and practices. And then introduces the necessity of the guardianship system. It can tackle our aged tendency population problem effectively, which will become more compatible with the concept of private law. Then discussing that if the exiting system of care and pension could solve these problems and can also replace the voluntary guardianship system. It is concluded that it has necessity and conditions to introduce the voluntary guardianship system.In the forth chapter, the choice of the legislative model is demonstrated, which is concluded that Japan’s arbitrary guardianship system suits our country’s current legislative situation and the basic national conditions. Finally, try to set up the Adult appointed guardianship system, in three aspects: the choice of legislative model, the specific rules of the guardianship contract, and the supervision system of guardianship. And also provides reference for the incoming civil code draft.